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Animus

The Truth News — Tue, 24 Feb 2026 19:18:57 +0000

Animus (noun, pronounced AN-ih-muss) refers to a deep-seated feeling of ill will, bitter anger, or active hostility toward someone or something. It implies a strong, often prejudiced, dislike or animosity. In legal contexts, it signifies a specific intention or mental purpose, while in Jungian psychology, it represents the masculine inner personality of a woman.

Key Aspects of Animus:

- Hostility: It is a formal term for intense dislike, hatred, or bad blood, often rooted in prejudice.
- Legal/Formal Usage: It can describe the “intent” or motivating spirit behind an action (e.g., animus furandi — intention to steal).
- Examples:
  “The politician’s
  
  animus
  
  toward her rival was clear” or “He harbors no personal
  
  animus
  
  .”

Related Words: Synonyms include animosity, enmity, ill will, antagonism, and malice.

Animus has long referred to the rational or animating components of a person’s psyche (it derives from Latin animus, which can mean “spirit,” “mind,” “courage,” or “anger”). Since a key animating component of personality can be temper, the word came to mean animosity, especially ill will that is driven by strong prejudice. The term is also used in the analytic psychology of C. G. Jung in reference to an inner masculine part of the female personality. The English animus is closely related to words such as animosity, magnanimous, and unanimous, but it is not as closely related to other similar-looking terms such as animal and animate. Those latter terms derive from the Latin anima, a distinct term that means “soul” or “breath” and that suggests someone’s physical vitality or life force—the breath of life.

animus meaning in law

Animus in law is a Latin term meaning “mind,” “intention,” or “disposition,” referring to a person’s underlying purpose or mental state behind an action. It is critical for establishing legal intent, such as animus furandi (intent to steal) or determining if actions were motivated by discriminatory “class-based animus”.

Simple Definition of animus

Animus primarily refers to ill will or animosity, particularly a prejudicial disposition toward a discernible group, known as “class-based animus.” More broadly, it signifies intention or purpose, and is frequently used in Latin legal phrases (e.g., *animus furandi*) to specify a particular state of mind or goal.

Definition of animus

In legal terms, animus is a Latin word referring to a person’s state of mind, specifically their intention, motive, or underlying disposition. It can be understood in two primary ways:

Ill Will or Animosity: This refers to a strong feeling of hostility, prejudice, or antagonism towards another person or, more commonly in legal contexts, towards a specific group of people. When directed at a constitutionally protected group (e.g., based on race, religion, gender, or national origin), it is often called “class-based animus” and can be a critical element in civil rights cases.
- Example 1 (Class-based animus): A landlord consistently rejects rental applications from families with young children, despite having available units and the families meeting all financial criteria. During a fair housing investigation, emails are discovered where the landlord expressed a strong dislike for “noisy kids” and a belief that families with children cause more damage to property.Explanation: The landlord’s repeated rejections and the discovered emails demonstrate a clear class-based animus against families with young children, which could be a violation of fair housing laws prohibiting discrimination based on familial status.
- Example 2 (General ill will): After a contentious business partnership dissolved, one former partner began spreading false and damaging rumors about the other to mutual clients and industry contacts.Explanation: The deliberate act of spreading false rumors, especially after a bitter separation, indicates a strong animus or ill will from one partner towards the other, potentially leading to a defamation lawsuit.

Intention or Purpose: This refers to the specific mental state or purpose behind an action. In this sense, animus is frequently combined with other Latin words to describe a precise legal intention.
- Example 1 (Animus furandi – intention to steal): A shopper picks up a valuable piece of jewelry from a display, quickly puts it into their pocket, and walks towards the exit without any intention of paying for it.Explanation: The act of concealing the jewelry and attempting to leave the store without payment clearly demonstrates animus furandi, which is the specific intention to steal, a necessary element for a theft charge.
- Example 2 (Animus manendi – intention to remain permanently): A foreign national applies for citizenship, having lived in the country for many years, established a successful business, bought a home, and integrated into the local community, showing no signs of planning to leave.Explanation: The individual’s long-term actions and commitment to their life in the country demonstrate animus manendi, indicating a clear intention to reside there permanently, which is a key factor in determining legal domicile for citizenship purposes.
- Example 3 (Animus testandi – testamentary intention): An individual, while of sound mind, drafts a handwritten note stating, “This is my last will. I leave everything to my niece, Sarah,” signs it, and has two friends witness their signature, even if the document isn’t prepared by a lawyer.Explanation: Despite any informalities, the clear language, signature, and witnessing indicate animus testandi, meaning the individual intended this document to serve as their valid last will and testament, expressing their wishes for asset distribution after death.

Key aspects of animus in legal contexts include:

State of Mind: It represents the subjective intention (the “mind with which a thing is done”) rather than just the physical act itself.
Specific Legal Terms: It is used to define specific legal intent, such as animus possidendi (intention to possess), animus revocandi (intention to revoke a will), or animus donandi (intention to give).
Discrimination/Hostility: In civil rights law, “class-based animus” refers to malicious, hostile, or prejudicial intent toward a specific group.
Criminal Law: Animus helps determine liability, often distinguishing between accidents and deliberate actions (e.g., animus nocendi or the intent to harm).

It is distinguished from mens rea (the guilty mind required for a crime), with animus often focusing more specifically on the intent behind a specific action

Common Legal Phrases Using Animus

The term is frequently part of established Latin maxims across various branches of law:

Criminal Law
- Animus Furandi: The intention to steal; a necessary element for theft charges.
- Animus Nocendi: The intention to cause harm or break the law, similar to mens rea.
- Animus Malus: An “evil intention” or general corrupt state of mind.
Property & Domicile
- Animus Manendi: The intention to remain in a place permanently; used to determine a person’s legal domicile.
- Animus Revertendi: The intent to return; used in property law to establish ownership of animals that habitually return home.
- Animus Derelinquendi: The intention to abandon or relinquish rights to property.
Civil & Constitutional Law
- Animus Testandi: The specific intention to make a valid will.
- Unconstitutional Animus: A doctrine where the Supreme Court invalidates laws if they were passed with a “bare desire to harm” a politically unpopular group.
- Animus Donandi: The intention to give a gift, which is required for a transfer of property to be legally considered a gift.

Distinction from “Motive”

While often used interchangeably in casual conversation, legal practitioners distinguish “animus” from “motive.” Animus (intent) refers to the will to do the act itself, whereas motive refers to the reason why the person wanted to do it. For example, in an employment discrimination case, a court may look for retaliatory animus

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

The Truth News — Mon, 11 Aug 2025 03:52:43 +0000

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

As a general rule, California malicious prosecution actions are dicey propositions insofar as they always subject the plaintiff to a potential Anti-SLAPP motion from the defendant pursuant to California Code of Civil Procedure section 425.16. At a minimum, such a motion requires the plaintiff to immediately produce admissible evidence establishing the malicious prosecution claim. The failure to produce such evidence causes the dismissal of the case and may result in the plaintiff having to pay the defendant’s reasonable attorney fees for bringing the motion. Malicious prosecution cases arising out of family law court matters are even more problematic.

As a general rule, for public policy reasons plaintiffs are not entitled to bring malicious prosecution actions stemming from matters originating in the family law courts. Bidna v. Rosen (1993) 19 Cal.App.4^th 27. A very narrow exception to the Bidna rule was carved out by Nicholson v. Fazeli (2003) 113 Cal.App.4^th 1091, wherein a wife was permitted to maintain a malicious prosecution complaint against a Trust (which had previously filed a cross-complaint in the wife marital dissolution action) because the Trust’s cross-complaint did not implicate any family law issues (i.e., it did not specifically involve allegations related to marital status, child custody, spousal support, or the division of community property). Because the Trust’s cross-complaint was a fairly rare animal (the vast majority of all family law court pleadings will involve some family law issue), parties contemplating filing a malicious prosecution action arising out of a family law court are strongly advised to consult with an attorney to obtain advice before filing a complaint that might be immediately dismissed and, even worse, might subject the party to paying the other side’s attorney fees. source

Disclaimer

The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Reid & Hellyer, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

When a party prevails in a legal proceeding, he or she sometimes will seek further vindication by way of a malicious prosecution action. However, no matter how frivolous the prior action was, not all legal proceedings are recognized by California courts as triggering malicious prosecution liability. In California, the filing of a frivolous garden variety civil action for breach of contract or a tort can support a later claim for malicious prosecution. In addition, the following types of legal proceedings are recognized as “prior actions” which will support a later claim for malicious prosecution:

A special insanity proceeding (Sutherland v. Palme (1949) 93 Cal.App.2d 307, 312-13);
A cross-complaint (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 52);
A will contest in connection with probate proceedings (MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 289);
Administrative board or agency proceedings. (Hardy v. Vial (1957) 48 Cal.2d 577, 580–581; Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664);
Judicial arbitration (Stanley v. Superior Court (1982) 130 Cal.App.3d 460, 465); and
Petition for administrative mandate (Sierra Club v. Superior Court (1985) 168 Cal.App.3d 1138)

However, California courts have drawn the line and failed to allow liability for malicious prosecution for the institution of the following legal proceedings:

Small claims court proceedings (Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476, 479);
Subsidiary procedural actions within a lawsuit, such as filing an application for a restraining order or for lien. (Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 639; Adams v. Superior Court (1992) 2 Cal.App.4th 521, 528);
Requests for admissions (Twyford v. Twyford (1976) 63 Cal.App.3d 916, 922);
Motion for writ of sale. (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 63);
A defendant’s filing of a notice of appeal. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 794);
Family law motions or OSC’s. (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 37);
Contractual arbitrations. (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 314);
A departmental investigation of a police officer where no formal proceedings occurred. (Imig v. Ferrer (1977) 70 Cal.App.3d 48, 59);
A California State Bar investigation that terminates at the investigatory stage without leading to proceedings before body that had power to action adversely affecting legally protected interests. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 671); and
An attorney’s complaint to state bar association where complaint does not result in initiation of any proceedings. (Chen v. Fleming (1983) 147 Cal.App.3d 36, 41)

This post is the sixth in an ongoing series of posts on the tort of malicious prosecution. Jeffrey Lewis represented the prevailing parties in the malicious prosecution case of Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156. Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced litigators and can advise you about your potential rights and defenses in a malicious prosecution action. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. source

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

You get sued. They claim to be the “victim,” but you are the real victim. You are being sued based on a falsehood … for their improper motives. Can you strike back for justice?

Victims often ask lawyers whether they can sue for malicious prosecution. Situations arise when a victim has been sued wrongfully. They have stress. They have legal expenses. Other costs come in. The wrongful lawsuit damages their reputation. It may even be damage their credit rating.

Some victims merely want emotional support. They want someone to tell them they are right, the person that sued them is wrong, and provide sympathy. That is certainly the expected role of family, and friends. It is a whole other matter entirely to counter – sue the person and attempt to win money from them.

The Benefits of Malicious Prosecution Suits

Malicious prosecution lawsuits have three main benefits:

Compensation for out of pocket and other expenses.
Deter or prevent the wrongdoer from wrongfully suing others in the future.
Deter other similar wrongdoers from creating victims.

The same legal analysis must be completed regardless of whether you are a victim or an attorney. This article explains the process in a civil setting. Look to our companion article on criminal cases.

The Technical Legal Test to Win at Malicious Prosecution

The traditional elements of a lawsuit for malicious prosecution are as follows:

The commencement or prosecution of a proceeding against the victim;
“Legal Causation” by the present defendant;
The lawsuit’s termination in favor of the present plaintiff;
The absence of probable cause for the proceeding;
The presence of malice;
Damage to the victim.

State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014);

Bonzo v. Kroger Grocery and Baking Co., 125 S.W.2d 75 (Mo. 1939);

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,812 (Mo. 1934).

This is the traditional law for malicious prosecution. Is it confusing you? There is an easier analysis.

The Easier to Understand Test for Malicious Prosecution

The Missouri Approved Instructions for a jury trial present a straightforward analysis for evaluating potential malicious prosecution cases. It is meant for ordinary people to understand and will be easier for you.

The test for malicious prosecution is as follows:

First, did the wrongdoer instigate or continue a judicial proceeding (a lawsuit) against the victim (you) that the victim won?
Second, in doing that, did the wrongdoer acted maliciously and without reasonable grounds?
Third, was the victim damaged?

Paraphrase of M.A.I. 23.07 (2000 Rev.).

What Does “Maliciously” mean?

You may have noticed some technical terms. They are important. The first term is “maliciously.” In a civil setting, maliciously means intentionally doing a wrongful act without just cause or excuse. It does not necessarily mean hatred, spite, or ill will. M.A.I. 16.01 (1) (1996 new); see also Sanders v. Daniel Intern Corp., 682 S.W.2d 803 (Mo. banc 1984); and Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is Reasonable Grounds?

Reasonable grounds is also needed for your analysis of whether you have a malicious prosecution case. Luckily, reasonable grounds is defined. “Reasonable grounds” means the existence of facts which would cause an ordinarily careful person to believe plaintiff (the victim) was guilty of the offense charged. See Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Our Law Dislikes Malicious Prosecution Cases

Malicious prosecution cases are not favored in the law. Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979). Because of this, you as the victim must be prepared to provide “strict and clear proof” of each of the elements of malicious prosecution. Id.

Probable Cause Weighs In Too!

The second element of malicious prosecution requiring reasonable grounds is closely related to probable cause. You should plan on addressing the probable cause elements as part of your malicious prosecution case.

The Missouri Supreme Court has set out a definition for probable cause in civil cases. It is as follows:

The person’s beliefs in the facts alleged,
Based upon sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus
A reasonable belief that under the facts the claim may be valid under the applicable law.

Holly v. Caulfield, 49 S.W.3d 747, 750-51 (Mo. App. 2001).

The Easy to Understand Test for Probable Cause

Basically, you need to ask yourself the following questions:

Did the person who sued you believe the facts they were alleging?
Would any reasonable person believe those facts?
Did the law allow a lawsuit against you; under those facts, assuming they were true?

Can I Get Punitive Damages To Punish?

Punitive damages are called “exemplary damages” and are not favored by the courts, much like malicious prosecution cases. To get punishment damages in a malicious prosecution case, “the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper Judication of the claim on which they are based.” Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (6, 7) (Mo. banc 1986). Remember that punitive damages require a separate determination by the court by “clear and convincing evidence,” which is a higher standard. Remember, who you are suing must have acted with a conscious disregard for your rights. I encourage you look to my article on punitive damages to see the specific elements of that cause of action.

Conclusion

Malicious prosecution cases are complex and have many legal requirements, as you can see. This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit.

Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money. Secondly, we see malicious prosecution lawsuits when it is an actual person who is just suing to “get at” somebody. I wish you luck in your analysis and hope any victims can receive just compensation based upon our analysis. source

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

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

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

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

Anti-SLAPP Law in California

The Truth News — Fri, 08 Aug 2025 08:01:01 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

Anti-SLAPP Law in California

1st Amendment Freedom of Press & Speech

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

Anti-SLAPP Law Cases – Case Law Summaries & Citings

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.

CIV. PROC. CODE § 425.16 (as amended 2009)

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

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

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

Anti-SLAPP Law Cases – Case Law Summaries & Citings

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

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

CA Statutes

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

Civil Code section 47

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:

any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
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;
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
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).

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).

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):

any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
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,
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
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).

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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

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.

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)

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.

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.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’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)

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.

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)

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)

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)

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.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.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)

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.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)

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.

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:

Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.
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.
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.
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

What Happens to An Attorney Who Abandons His Client’s Legal Matter?

The Truth News — Mon, 03 Mar 2025 17:33:59 +0000

What is the definition of attorney abandoning client?

I am working on filing a complaint with the CA State Bar about my attorney. One question asks if the complaint involves allegations that the attorney has abandoned the client. I have searched the CA State Bar website, Google, etc. I can’t find what constitutes being “abandoned” by an attorney. It has been 6 months since I have heard from my attorney. After multiple attempts to communicate via email, phone and a certified letter she has not responded to me. Her Law Firm responded to my last certified letter by stating she has a new email address and phone number (and cc’d my attorney on that reply email). Their website says she is still a partner there but the site has her new contact information. If she is no longer practicing at that Law Firm, isn’t it both my lawyer’s and the Law Firm’s ethical obligation to let me know of this change and give me her new contact information PRIOR to me having to send a certified letter to track her down? There are many other issues. But before I mark “yes” on this question, I want to confirm this would constitute being “abandoned” by my attorney. Thank you in advance.

What Happens to An Attorney Who Abandons His Client’s Legal Matter?

In California, a lawyer’s abandonment of a client violates the Rules of Professional Conduct. This includes failing to communicate with the client or taking steps to avoid prejudice.

When can a lawyer withdraw?

A lawyer can withdraw with a client’s consent, even at a critical time.
A lawyer can withdraw if the client’s interest won’t be prejudiced or delayed.
A lawyer can withdraw if they know or should know the client is acting without probable cause.
A lawyer can withdraw if they know or should know the representation will violate the rules or the State Bar Act.

How should a lawyer withdraw?

A lawyer should give the client enough notice to retain other counsel.
A lawyer should cooperate with the existing firm to ensure the client’s interests are protected.
A lawyer should protect client confidences.
A lawyer should address conflicts of interest with clients.

When is withdrawal improper?

Withdrawing at a critical point and prejudicing the client’s case
Waiting too long to terminate the relationship

Ethical considerations in withdrawing from representation

Knowing how much – rather, how little – you can say when you seek Court approval to withdraw

Every lawyer in private practice has been there at least once in her career – the moment at which she realizes she needs to withdraw from representation of a client. While your client can always fire you at any time for any reason1, (see Fracasse v. Brent (1972) 6 Cal.3d 784, 790) you as the lawyer do not have the same latitude in ending the client relationship. But when you know you need to end the relationship, it is best to do so promptly. While a rash or precipitous decision is never in your best interest, a considered, prompt decision surely is because a deteriorating relationship with your client is unlikely to improve and the passage of time may only make your withdrawal more problematic, especially if you’re headed to trial.

In any case, when you find yourself at a crossroads in a client relationship remember that there are circumstances in which you must terminate the relationship and circumstances where you may terminate the relationship. I will review the California Rules of Professional Conduct for those separate circumstances and then consider what you need to do if your client consents to your withdrawal and – more problematically – what you need to do if you have to go to court to withdraw. The latter situation poses a number of ethical questions as to what you can and cannot tell the court (even in camera) about your situation and why you are seeking to withdraw.

Before discussing cases of mandatory and voluntary withdrawal it is important to remember that whenever you withdraw from representation, you may not withdraw until you have taken “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel.” (Rules of Professional Conduct 1.16 (d). See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915 [“A lawyer violates his or her ethical mandate by abandoning a client (citation omitted), or by withdrawing at a critical point and thereby prejudicing the client’s case.” (citing rule 3-700(A)(2)]; Moore v. United States, 2008 WL 1901322 at *3 [“[I]n California, withdrawal is proper when the client’s interest will not be unduly prejudiced or delayed”].) This obligation is another reason to act promptly if you believe you need to terminate a client relationship; waiting too long may prejudice your client and forestall or preclude your withdrawal.

When you must terminate legal representation

The Rules of Professional Conduct of the State Bar of California (“Rules of Conduct”) specify three circumstances under which an attorney must terminate a client relationship: (1) where the attorney knows or reasonably should know that a client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; (2) where continued employment would result in violation of the Rules of Professional Conduct or the State Bar Act; or (3) where the attorney’s mental or physical condition renders effective representation “unreasonably difficult.” (Rules Prof. Conduct, rule 1.16 (Declining or Terminating Representation).) You also must seek to withdraw from an action where the client has discharged you. (See, e.g., Bus. & Prof. Code § 6104 [lawyer cannot appear as attorney for a party to an action “without authority”].) Indeed, appearing without authority for a party can be grounds for disbarment or suspension. (Ibid.)

When you may terminate a client relationship

The Rules of Conduct specify that an attorney may terminate a client relationship where the client (a) insists upon presenting a claim or defense not warranted under existing law and not supported by a good faith argument for extension, modification, or reversal of existing law; (b) seeks to pursue an illegal course of conduct; (c) insists that counsel pursue an illegal course of conduct or that violates an attorney’s ethical obligations; (d) engages in conduct that renders it unreasonably difficult for the member to effectively represent the client; (e) insists, in a matter not pending before a tribunal, that the attorney engage in conduct contrary to the judgment and advice of the attorney; or (f) fails to pay the attorney’s agreed-upon fees and expenses. (Rules Prof. Conduct, rule 1.16(b).)

Withdrawal also may be permitted where: continued employment is likely (contrasted to the certainty under 3-700(B)(2)) to violate the attorney’s ethical obligations, the client’s best interests would be served by withdrawal due to an attorney’s inability to work with co-counsel, the attorney’s mental or physical condition renders it difficult for the employment to be carried out effectively, the client knowingly and freely assents to termination, or the member has a good faith belief that the tribunal will find other good cause for withdrawal. (Rules Prof. Conduct, rule 3-700(C)(2)-(6).)

Common grounds for terminating a client relationship are a personality clash, inability to work together or an irreconcilable difference about the course of litigation. In short, a complete breakdown of any sort of workable relationship between you and your client. Courts recognize this sort of breakdown within an attorney-client working relationship as grounds for withdrawing. (Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014 [motion to withdraw granted “on the basis that the relationship between (the attorney and client) had completely broken down”].) As the Court noted in Estate of Falco, “[i]t was not relevant who caused the breakdown,” but rather that “the effects the rift would have on [the] legal representation.” (Id. at 1015.)

“The guy just disappeared…”

Another recognized ground for withdrawal is when your client simply disappears on you and will not respond to letters or calls or emails. (See, e.g., California State Bar Formal Opinion No. 1989-111.) The facts behind that Opinion are a good example of what it’s like when your client goes AWOL. There, the attorney represented a defendant in a personal injury case and when time came to prepare and file an answer, the client just disappeared.

The attorney wrote three letters to the client to his last known address but the letters were returned unclaimed. The attorney tried calling the client numerous times without success. The Opinion of course did not “rule” on the withdrawal but only advised that an attorney must make a “diligent effort” to locate a client and opined that the attorney could file an answer “to avoid reasonably foreseeable prejudice to the client.” (If your client has disappeared on you or returns your mail unopened, be sure to keep a precise record of all returned correspondence, voice messages, emails, texts and any other means you have tried to communicate with them as you will need to preserve a record of your attempts when you make a motion to withdraw, as discussed more fully below.)

Consensual withdrawal

Where your client consents to your withdrawal, have them sign a Substitution of Attorney (in California it’s Judicial Council Form MC-050). File and serve the signed Substitution on all parties to the action and you are out of the case. Once you’ve filed and served your Substitution you may want to monitor the Court’s online profile of your case and communicate with the Clerk’s office if you have not been removed as counsel from the case in the Court’s online profile. I have had instances where I have been served a year after I withdrew from a case because the Court had not removed me from the service list even though my Substitution had been duly filed and served on all parties.

Moving to withdraw

While I have been able to obtain Substitutions in most cases where I have withdrawn, I have also had clients who, without refusing to sign a substitution, just disappear and ignore my attempts to reach them by phone or mail or email or text. Such unresponsiveness may of course be the reason you feel constrained to withdraw – you can’t prepare for trial if your client does not cooperate and just ignores you. The unresponsiveness may be a pattern of behavior and may be an instance of a client getting cold feet midway through a litigation. In any event, this is one of those cases where you need to act promptly and go to court for the judge’s approval of your withdrawal. In my experience, it is always best to cut ties with an unresponsive client sooner rather than later as the complications down the road may be troublesome and the client’s own detachment from a case can pull her lawyer down with her.

Before getting into the nuts and bolts of withdrawal motions, one important practice tip here, which I alluded to above, is to record in detail each and every time you tried to reach your client and how (letter, email, call, text, etc.) by date and time and, if you left a voicemail, exactly what you said. It’s rather like a meet and confer process where you want to assemble all your efforts at communicating in case the judge asks you what you did to try to reach your client about withdrawing. Once you start drafting the declaration for your withdrawal motion (discussed below) you will need to have a record of all the times you tried to communicate. Once you have the evidence of your attempts at communicating and getting a signed substitution then you can begin your motion to withdraw. In California your motion must be made on three fillable Judicial Council Forms:

MC-051 Notice of Motion and Motion to be Relieved as Counsel – Civil

MC-052 Declaration in Support of Attorney’s Motion to be Relieved as Counsel – Civil

MC-053 Order Granting Attorney’s Motion to be Relieved as Counsel – Civil

No memorandum of points and authorities (“MPA”) accompanies your motion to withdraw in California, unlike the general requirement of an MPA for civil motions. Your declaration is the critical filing here. In it, you provide the “reasons” for your motion, and this is the most difficult document to craft. In California, you may not divulge any privileged communications in support of your motion and the gambit of what constitutes privileged communications is broad – even to the fact that you have not been paid.

Duty not to divulge privileged communications

When submitting and arguing a motion to be relieved as counsel – even in camera – counsel may not under any circumstances reveal confidential client information in seeking to withdraw. California Rules of Court, rule 3.1362(c) specifies that your declaration in support of motion “must state in general terms and without compromising the confidentiality of the attorney-client relationship” why you are bringing your motion. In California, the scope of what might “compromise” the confidentiality of the attorney-client relationship is broad and reaches even to non-public court proceeding.

In fact, if the court orders an in camera hearing to consider your motion, client confidences still may not be disclosed. (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 595; Cal. State Bar Form. Opn. 2015-192 [confidential information cannot be revealed in open court or in camera.] See also Mary A. Dannelley, Ethically Speaking: Attorney Disclosure Upon Withdrawal, Orange County Lawyer, November 2015, at 47.) This may even preclude an attorney from disclosing a client’s failure to pay agreed-upon fees as the reason for withdrawal, as such information may be a client “secret,” the disclosure of which would be embarrassing or detrimental to the client. (See Bus. & Prof. Code § 6068, subd. (e); Dixon v. State Bar (1982) 32 Cal.3d 728, 735 [attorney subject to discipline for disclosing confidential client information likely to cause client public embarrassment]; Oregon State Bar Form. Opn. 2011-185 [attorney may not disclose in withdrawal motion that client is not paying attorney’s bills].) However, a court may not deny withdrawal where counsel maintains that he must step down because of a disabling conflict that involves privileged communications. (Aceves, 51 Cal.App.4th at 584.)

In the leading case of Aceves v. Superior Court (1996) 51 Cal.App.4th 584, the court of appeal reversed (on a writ of mandate) the trial court’s denial of a motion to withdraw filed by a public defender. In that case, the public defender advised the trial court on the morning of the scheduled trial that he had an actual conflict with his client, declaring that “the conflict caused a ‘complete, utter and absolute’ breakdown in the attorney-client relationship and precluded him from continuing the representation.” (Id. at p. 588.) The public defender also told the trial court that “he could not reveal the nature of the conflict without divulging client confidences or breaching ethical duties.” (Ibid.)

The trial court denied the motion after the public defender refused to reveal privileged communications to further explain the conflict. The court of appeal then denied the public defender’s first writ of mandate “without prejudice to file a renewed application to be relieved as counsel founded upon a showing of the nature of the conflict, which showing may be made in camera.” (Ibid. (citation omitted).) The public defender subsequently renewed his motion, but still refused to reveal privileged or confidential information. The court again denied the motion. Following the denial of its second motion, the public defender’s office filed a second writ, which the court of appeal this time granted. The court ultimately held, “Whereas here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.” That is, Aceves holds that the Court will take counsel’s word for it that a conflict exists and may not probe further.

“And your reason for withdrawal?”

But any motion to withdraw still has to have a reason. So, given all the limitations, what can you say to support your motion? I recommend a very general statement such as:

In accordance with the Ethics Rules (California Rules of Professional Conduct) my withdrawal is mandatory but I have been unable to obtain a signed Substitution of Attorney.

Because the statement is so general you may also want to describe what steps you took to determine what you could and could not say in providing the “reason” for your motion so your statement does not appear evasive or incomplete. You may wish to add a statement clarifying what steps you took before you drafted your stated “reason” for the motion:

I confirmed the application of the Rules independently and with the State Bar Ethics hotline.

The ethical considerations are so important when you are drafting your supporting declaration for the withdrawal motion. Frankly, there is very little that a lawyer can divulge in support of a motion to withdraw. Even, for example, to tell the judge in chambers that your client is unresponsive would be to disclose confidential information about the client and cast an unfavorable light on your client in the Court’s eyes. A judge or opposing counsel may try to elicit information about your client which you should not share (and are ethically prohibited), such as whether he or she has been paying the bill, whether they have moved away, whether they have essentially disappeared, and the like. The Court may ask in general terms for a description of the conflict. (Manfredi & Levine v. Superior Court (1998) 66 Cal.4th 1128, 1133-1136.)

The service rules

Once you have prepared your declaration and are ready to file and serve your motion, be sure to follow the service rules of California Rules of Court, rule 3.1362(d) which provides:

(d) Service

The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.

(1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either:

(A) The service address is the current residence or business address of the client; or

(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.

(2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client’s current electronic service address.

As used in this rule, “current” means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.

The questions regarding mail service are included in the Judicial Council Declaration form (MC-052). Be sure you have answered all questions regarding service very accurately as the efforts made at notice to the client are critical to your motion being granted. I mail the notice, motion, declaration and proposed order to any and all mailing addresses I have for a client and also email to any email addresses I have for the client.

After your motion to withdraw has been granted, you will need to serve the order on your client. The Order will include all upcoming hearings in the case. Under California Rules of Court, rule 3.1362(e) the Court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the Court. If that is the case, serve the Order and file your Proof of Service as quickly as you can because you are not relieved as counsel until those steps are taken. In other words, until you have served the order on your client and filed the POS, you remain the attorney of record, having the same duties to act competently to protect the client from prejudice. (Cal. State Bar Form. Opn. 1994-134.)

Obligations following withdrawal

The primary obligation for an attorney following withdrawal is to take all reasonable steps to avoid any prejudice to the client in the litigation. Thus, at a minimum, the attorney must advise the client of such things as any upcoming dates and deadlines in the client’s matter. I recommend a very detailed letter with the precise dates, time and department for all upcoming hearings, discovery deadlines, and any pleadings deadlines in the case. If you have outstanding subpoenas, you should advise your former client of how she may obtain the records once produced by giving her the name of the deposition officer and the third parties to whom any subpoenas were issued. Until the Substitution of Attorney form has been filed or until the court order granting withdrawal is effective, the attorney remains obligated to act competently to protect the client’s interests.

A former attorney does not need to provide additional services to the client once successor counsel has been employed and the attorney has released the client’s files. You do have a duty to release the client’s files. (Rule 1.16(e)(1).) This rule requires that all client materials and property be released and defines “client materials and property” as “correspondence, pleadings, deposition transcripts, expert’s reports, and other writings, exhibits, and physical evidence, whether intangible, electronic, or other form, and other items reasonably necessary to the client’s representation whether the client has paid for them or not.”

The law is not clear on whether or not certain work product of the attorney is within the documents that need to be turned over to a client following termination. Surely work product that has previously been communicated to the client should be turned over to the client, but whether you need to turn over work product in progress (i.e., not previously communicated to the client) remains an open question. You may charge the client for copying everything (if he or she wants a hard copy) if your fee agreement so provides.

Unreasonable delay in releasing or refusal to turn over the client’s file is grounds for discipline. Additionally, where failure to return the client’s file results in damages to the client, the attorney may incur civil liability for malpractice. The bottom line is that the attorney cannot hold the files to extort a disputed fee or to create a lien that is contrary to public policy. (Academy of Calif. Optometrists v. Superior Court (1975) 51 Cal.App.3d 999, 1006.)

Once notified of termination, the attorney must promptly return to the client any part of any fee paid in advance that has not been earned. (Rule 1.16(e)(2).

Conclusion

Withdrawal from any case is fraught with ethical considerations as to when you may withdraw, what reasons you may provide the Court for your withdrawal, your responsibility to avoid prejudice to the client, and your responsibilities following termination. If you believe you need to withdraw from a case and have questions about the particular ethical issues involved, I recommend you call the State Bar hotline. I also recommend you document each and every step you took to try to work things out with your client or to solicit a consensual substitution from them if you believe you really have to withdraw.

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Endnote

1Fracasse v. Brent, 6 Cal.3d 784, 790 (1972)(“a client should have both the power and the right at any time to discharge his attorney with or without cause”). A client’s discharge of an attorney cannot constitute breach of contract under California law because “it is a basic term of the contract, implied by law into it by reason of the special relationship of the contracting parties, that the client may terminate that contract at will. (Id. at 791.)

Ethically Speaking – Terminating the Attorney-Client Relationship

As trained advocates, the thought of withdrawing from representation makes lawyers inherently uneasy. Terminating the attorney/client relationship for anything other than completing the scope of the assignment can be uncomfortable. Lawyers must know when and how to withdraw from representing a client to avoid potential ethical violations in these untenable situations. This article provides an overview of how to ethically terminate representation.

While the scope of this article does not extend to the basis for withdrawal, counsel should carefully review California Rules of Professional Conduct, rule 1.16(a) and (b) to determine when withdrawal is required and when withdrawal is permitted, but not required.

No Absolute Right to Withdraw

Clients have the right to discharge lawyers for any reason. However, attorneys do not have the same absolute right to withdraw from the attorney-client relationship. Cal. Rules of Prof’l Conduct, R.1.16. Even if it is proper (or mandatory) for a lawyer to withdraw from representation, she must either get the client’s consent or the tribunal’s approval for matters pending before a tribunal, and must in all matters follow the requirements set forth in rule 1.16 in order to avoid being subject to discipline. Slavkin v. State Bar, 49 Cal. 3d 894, 903 (1989). In matters not pending before a tribunal, a lawyer may terminate the relationship without client consent or approval of any tribunal, provided rule 1.16’s other requirements are met.

Agreements with a client mandating that the client sign (and allow the lawyer to hold) a substitution of attorney to be filed at the lawyer’s election are improper. Los Angeles Bar Ass’n Form. Opn. 371 (1977). However, it is not per se improper for a lawyer to obtain an advance agreement from the client providing that a lawyer may withdraw after giving the client notice and ensuring the client is not abandoned at a critical point in the matter. Ramirez v. Sturdevant, 21 Cal. App. 4th 904, 915 (1994).

Attorneys who abandon their clients and fail to communicate with the client the effects of the withdrawal without taking reasonable steps to avoid foreseeable prejudice are in violation of the Rules of Professional Conduct. Matter of Brockway, 4 Cal. State Bar Ct. Rptr. 944, 951-52 (Rev. Dep’t. 2006).

Of course, a lawyer may obtain a client’s consent to the lawyer’s withdrawal, which generally can occur even at a critical point in the matter, including the eve of trial, so long as the client “knowingly and freely” agrees. Cal. Rules of Prof’l Conduct, R.1.16(b)(6); Cal. Civ. Proc. Code § 284(1); Hock v. Superior Court, 221 Cal. App. 3d 670, 674 (1990).

A lawyer must not terminate representation until she has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving sufficient notice to permit the client to retain other counsel. Cal. Rules of Prof’l Conduct, R.1.16(d).

As a practical matter, irrespective of why the need to withdraw has arisen and irrespective of what agreements have been entered into with the client, a lawyer must comply with California Rule of Professional Conduct 1.16. A lawyer must take reasonable steps to avoid foreseeable prejudice to the rights of the client when withdrawing from the case. This requirement may include requesting a continuance of an upcoming hearing or requesting an extension to respond to discovery. Counsel should also provide the client reasonable notice of her intent to withdraw to allow the client time to retain other counsel. It would be prudent of counsel to put such notice in writing to mitigate the risk of a claim that counsel did not provide such notice.

Motion to Be Relieved

For matters pending before a tribunal, in the event that a lawyer is unable to obtain the client’s consent to the lawyer’s withdrawal, the attorney may withdraw with court approval upon noticed motion. Cal. Civ. Proc. Code § 284(2). In state court, the requirements as to form and content for a motion to be relieved are governed by California Rules of Court 3.1362. The motion to be relieved must state why a court order is required and a substitution with client consent could not be obtained. Id. Despite this requirement, the duty of confidentiality applies to motions to be relieved irrespective of whether the motions are based on mandatory or permissive withdrawal. San Diego Bar Ass’n Form. Opn. 1990-2.

While an attorney is prohibited from disclosing confidential information in connection with the motion, the court may require that counsel demonstrate in “good faith” the nature of the conflict giving rise to the motion. Manfredi & Levine v. Superior Ct. (Barles), 66 Cal. App. 4th 1128, 1133-36 (1998). Counsel may request an in-camera hearing to provide the court with details. Id. at 1136. Even in an in-camera hearing, counsel cannot disclose confidential information or communications. Resultingly, the duty of confidentiality may limit an attorney’s ability to disclose the circumstances giving rise to the requested relief, even when ordered by the court to reveal those circumstances. Cal. State Bar Form. Opn. 2015-192.

Many times, a motion to be relieved will be based on the failure of the client to pay his/her attorney’s fees. While no California authority has directly addressed this issue, an Oregon State Bar Opinion has concluded that an attorney cannot disclose that the client has not paid the lawyer’s bills because this would be deemed embarrassing or likely to be detrimental to the client. Or. State Bar Form. Opn. 2011-185. Likewise, a written fee agreement is deemed to be a privileged and confidential communication and thus, should not be included as part of the motion. Bus. & Prof. Code §§ 6149, 6068(e)(1); Evid. Code § 952. Moreover, where the basis for withdrawal is the client’s non-payment or any other material breach of a fee agreement, rule 1.16 requires that the lawyer give the client “a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement of performs the obligation.” Cal. Rules of Prof’l Conduct, R.1.16(b)(5). A careful lawyer will be sure this warning is in writing.

It is important for counsel to thoughtfully consider the effect of the duty of confidentiality prior to filing a motion to be relieved. If counsel believes that the motion will be opposed or if he/she is unable to demonstrate in the supporting declaration good faith for the request, it is prudent for counsel to request an in-camera hearing in the moving papers. Even then, counsel must carefully consider how to meet her burden while also ensuring client confidences are maintained. To ensure that the appropriate safeguards are in place, a lawyer should also consider requesting in the motion itself that the hearing be heard by a judge who is not assigned to the case to avoid the potential of prejudicing the client.

Returning the Client’s File

The order on a motion to be relieved must be served on the client and all parties who have appeared in the case. Cal. Rules of Court 3.1362(e). The court may delay the effective date of the order until a proof of service is properly filed. Id. Counsel should therefore carefully consider the timing of filing a motion to be relieved and ensure adequate time is afforded for notice to the client, preparing/filing the motion, attending the hearing, and serving the order, all while also taking appropriate steps to avoid foreseeable prejudice to the client’s case.

Notably, if a motion to be relieved is denied, the lawyer has a duty to comply with the order even if the motion is denied on the basis of conflict of interest. Cal. Rules of Prof’l Conduct, R.1.16, Cmt. 4.

Upon termination of representation, a lawyer should revisit rule 1.16 to ensure that he/she promptly returns any unused funds to the client and releases to the client all client materials and property. Cal. Rules of Prof’l Conduct, R.1.16(e); Jeremy Suiter, Ethically Speaking: Retaining the Client File After the Representation Ends, Orange County Lawyer, April 2014, at 44. When reviewing the final billing statement, counsel should carefully consider whether it is appropriate to charge a client for the preparation and argument of the motion to be relieved as one out of state opinion provides that an attorney may not charge the client for such work. N.C. State Bar Form. Ethics Opn. 2007-8.

All good things must come to an end. When faced with the need to withdraw from representation, a lawyer should proceed thoughtfully throughout the process and remember irrespective of the reason for withdrawal, rule 1.16 and Cal. Rules Ct. 3.1362, as applicable, must be complied with. source

Ethical Departures: Obligations to Clients When Attorneys Change Firms

Years ago, attorney mobility referred to an attorney’s rise in the firm’s ranks from law clerk to associate, to junior partner, to equity partner. Today attorney mobility refers to the ritual of attorneys changing firms on a regular basis to improve one’s financial and equity status. When lawyers in today’s legal market decide to leave their current firms, this decision involves several ethical and professional considerations but the primary focus must always be on the client’s best interest. Little formal guidance exists as to the proper way to handle this relatively common occurrence or how to resolve the competing interests of the departing attorney and the firm in a way that maximizes the client’s best interests.

How and When to Inform the Client

The law treats a lawyer departing his or her firm as a termination of the attorney client relationship and requires the departing attorney to “take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.” (See California Rules of Professional Conduct [“CRPC”] 3-700.) The duty to communicate with clients includes the duty to advise clients of changes in employment status that materially alter the client representation. Clients should not be “kept in the dark” about the status of the firm and its attorneys. CRPC 3-500. Procedures should be in place to ensure all clients continue to receive competent representation when an attorney is changing firms.

A departing attorney has an ethical obligation along with the existing firm to assure that clients are informed that the lawyer is leaving the firm. The best practice is for the departing attorney and the responsible person from the existing firm to draft a joint letter that notifies the client of the attorney’s upcoming departure. As the client has the ultimate decision to select counsel of his/her choice, information concerning the lawyer’s departure and where the lawyer is going should be relayed to the client to allow the client adequate time to make an informed decision.

Oftentimes, the departing attorney wants to take the client with him to the new firm. Contacting firm clients with whom the departing attorney has no prior involvement in the client matter may be a potential violation of CRPC 1‑400 (B)(2)(b). Notifying clients of the departing attorney’s new law firm before the attorney actually resigns from his existing firm should adhere to the following:

Limit the notice to client the departing attorney has represented;
Do not urge the client to sever his/her relationship with the existing firm but may advise the client of the departing attorney’s willingness and ability to continue representation;
Advise the client he/she has the right to choose whether the old firm, the departing attorney or some other attorney will continue the representation until conclusion; and
Do not disparage the former firm.

Partners leaving a law firm are permitted to solicit any client with whom they have a prior professional relationship. [CRPC 1-400(C)]. And, in those instances where the attorney never worked on a client’s matter, solicitation of that client is typically prohibited. Keep in mind that departing attorneys may expose themselves to potential tort liability when they persuade firm clients to leave the firm and change to the departing attorney’s new firm. See Reeves v. Hanlon (2004) 33 Cal.App.4th 1140 regarding intentional interference with contractual relation and interference with prospective economic advantage. See also Davis v. Nadrich (2009) 174 Cal.App.4th 1 regarding negligent interference with prospective economic advantage.

What Goes With the Departing Attorney

As with medical or academic records, the client files are the property of the client. When sending the suggested joint letter, the letter should advise the client that the client may have all of his files and property delivered to the client or to whomever the client wishes to further handle his/her matter. Reeves v. Hanlon (2004) 33 Cal.App.4th 1140. In those circumstances where a departing attorney wants to take client’s files from his/her existing firm, the departing attorney should consider whether those documents were created for the attorney’s general use or were they created specifically for the client’s representation. And, in those circumstances where a departing attorney will no longer be involved in the client’s representation, the departing attorney may still retain copies of the client’s documents provided he/she maintains the confidential information is protected.

Obligations of the New Firm

The departing attorney will need to do a full conflict check as to those clients that are following the departing attorney. Information necessary to complete a conflict check may be disclosed to the new firm as failure to do a detailed check can lead to disaster. The conflict check should include not only those clients likely to come with the newly arriving attorney but also persons adverse to the newly arriving attorney’s clients.

Conclusion

In today’s age of mobility, an ounce of prevention is worth a pound of cure as a departing attorney wants to avoid future litigation with his/her former firm. Be honest and maintain your ethical and fiduciary duties to your clients and your partners. source

– Withdrawing as Counsel Without Inviting Exposure

by Lauren J. Blaes and Michael D. Stewart

The issues that lead a lawyer to withdraw from a matter are often the same issues that can lead to litigation or other disputes with the client. An improper withdrawal can simply accelerate and exacerbate the risk of things going sideways with the client. As discussed below, the key elements of a proper withdrawal from litigation are: having an appropriate basis under the ethical rules; complying with any relevant court rules; and avoiding prejudice to the client (e.g., by not revealing confidential/unsavory facts about the client and timing the withdrawal so that the client is not left in a lurch). It is this last factor that is often the most important risk management step because a prejudiced client can result in a client with a claim. In fact, because many withdrawals are precipitated by a client’s failure to pay fees, a poorly handled withdrawal can provide the soon-to-be-former client with a potential defense or offset to payment of those very fees, if not worse.

Rule 1.16 of the California Rules of Professional Conduct sets forth the various circumstances when a lawyer is required to withdraw, as well as the circumstances where a lawyer is permitted to withdraw. For example, lawyers are required to withdraw when their client demands that they assert a frivolous claim or when the representation will otherwise violate the Rules of Professional Conduct. See Cal. Rules of Prof’l Conduct R. 1.16(a)(1) and 3.1. An even more clear-cut case requiring withdrawal is when the client has terminated the representation. See Cal. Rules of Prof’l Conduct R. 1.16(a)(4); see also Cal. Bus. & Prof. Code § 6104 (“Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding constitutes a cause for disbarment or suspension.”).

More common are situations when withdrawal is at the lawyer’s discretion. For example, a lawyer may withdraw if “the client breaches a material term of an agreement” (e.g., fails to pay the lawyer’s invoices), but only if the client has been given “reasonable warning” that the lawyer will withdraw unless the obligation is fulfilled. See Cal. Rules of Prof’l Conduct R. 1.16(b)(5); but see California Central District Rule 83-2.3.2 (“Failure of the client to pay agreed compensation is not necessarily sufficient to establish good cause.”). Other situations permitting withdrawal include, for example: (1) where the client insists on action that the lawyer believes is criminal or fraudulent, (2) certain instances where the lawyer has an inability to work with co-counsel, (3) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively, or (4) more generally, where the lawyer believes in good faith that the court or other tribunal will find other good cause for withdrawal. See Cal. Rules of Prof’l Conduct R. 1.16(b)(1)-(10).

A lawyer whose representation of the client is not before a tribunal still needs to satisfy the mandatory or permissive grounds for withdrawal, but unlike the litigator, does not need to obtain permission from a tribunal. See Cal. Rules of Prof’l Conduct R. 1.16(c). In some circumstances, the court may refuse to allow withdrawal even though the lawyer is facing a seemingly “mandatory” withdrawal situation. For example, if the court denies a lawyer permission to withdraw, the lawyer is obligated to comply with that order “even if the lawyer sought permission to withdraw because of a conflict of interest.” See Cal. Rules of Prof’l Conduct R. 1.16, cmt. 4. In addition, the specific rules and requirements surrounding withdrawal vary from court to court, and some requirements are not obvious. The U.S. District Court, Central District of California, for example, specifically requires counsel to inform organizational clients of the client’s inability to appear pro se. See U.S.D.C. (Cal. C.D.) L.R. 83-2.3.4. In state court, some California lawyers fail to remember that their motion to withdraw must be filed using the Judicial Council forms required by California Rules of Court, Rule 3.1362. The filing must include the motion (with the noticed hearing date), a declaration attesting to the reasons for the withdrawal as well as to service of the motion on the client and all upcoming hearing dates, and a proposed order, all of which are Judicial Council forms. Notably, the motion and accompanying documents must be served not only on all parties, but also on the client, and the declaration supporting the motion must provide facts attesting to efforts to confirm the address of the client.

Though this may seem like a straightforward process, a predicament arises given that lawyers have a duty of confidentiality to their clients. Thus, a careful balancing act ensues between providing the court with sufficient information to justify the withdrawal while still maintaining client confidences. Importantly, even when lawyers are seeking to withdraw they are still bound by the duty of confidentiality. See Cal. Rules of Prof’l Conduct R. 1.6; Cal. Bus. & Prof. Code § 6068(e). Because the broad duty of confidentiality continues even through the motion to withdraw process, lawyers must tread lightly with the information disclosed in their motion and limit what is ultimately shared. Indeed, there are multiple published decisions where lawyers have found themselves in hot water for not sufficiently maintaining such client confidences in the withdrawal process and oversharing.

As an example, a motion to be relieved may state that the specific facts giving rise to the motion are confidential and that, without waiving such client confidences, irreconcilable differences have arisen resulting in a breakdown of the attorney-client relationship. See Page v. Stanley, No. 2:11–cv–02255–CAS(SSx), 2014 WL 2472248 (C.D. Cal. June 2, 2014) (finding withdrawal appropriate where counsel asserted “a breakdown in attorney-client communications” and that it had become “unreasonably difficult” to continue to represent the client); Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128, 1135 (1998) (a conflict of interest is present when “there has been an irreparable breakdown of the working relationship between counsel and client”). In fact, the ABA Model Rules suggest that the motion need only cite the relevant rule justifying the attorney’s withdrawal and state that professional considerations require withdrawal. See ABA Model Rules of Prof’l Conduct R. 1.16, cmt. 3 (“The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”).

As reflected in California State Bar Formal Opinion 1993-133:

[c]lient secrets means any information obtained by the lawyer during the professional relationship, or relating to the representation, which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client. (See Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58.) Hence, the attorney’s duty to maintain client confidences and secrets inviolate is broader in scope than the attorney-client privilege.

Looking more broadly at other jurisdictions, there are many published decisions finding fault with the lawyer who said too much in their motion to withdraw. See, e.g., People v. Waters, 438 P.3d 753, 761 (Colo. 2019) (disciplining lawyer who disclosed client confidences out of frustration); In re Ponds, 876 A.2d 636, 637 (D.C. 2005) (censuring lawyer for disclosing confidential information in a motion to withdraw); In re Gonzalez, 773 A.2d 1026, 1029-32 (D.C. 2001) (admonishing lawyer who revealed that his clients had stopped paying, failed to cooperate in preparing for trial, missed several appointments, and had misrepresented facts); Attorney Grievance Comm’n of Md. v. Smith-Scott, 230 A.3d 30, 69 (Md. 2020) (concluding that lawyer violated her duty of confidentiality when she attached email exchanges with the client to support withdrawal); Cleveland Metro. Bar Ass’n v. Heben, 81 N.E.3d 469, 471-72 (Ohio 2017) (disciplining a lawyer who revealed attorney-client communications about the scope of the representation, accused the client of failing to pay his fees, and disclosed legal advice he had provided about the client’s potentially illegal conduct); Lawyer Disciplinary Bd. v. Farber, 488 S.E.2d 460, 466 (W. Va. 1997) (suspending a lawyer who attached an affidavit to a motion to withdraw that accused the client of improper conduct).

If the lawyer suspects that the court may require further information based on past experience with the particular judge or the procedural posture of the case (e.g., there have already been numerous changes to counsel, the case is close to trial or a significant motion, etc.), the attorney may also use the motion to request that, if necessary, any further information requested by the court be provided in an in camera hearing outside the presence of all other parties. See Manfredi, 66 Cal. App. 4th at 1136-37. In fact, as a matter of course, it may be best to preemptively address this potential issue by putting the request for an in camera hearing in the motion so that the court is prepared for such a request. In some cases, the court may then reserve the withdrawal hearing for the last matter on the docket.

Final Remarks
As discussed above, there are many valid reasons why a lawyer may seek to withdraw from a case. However, at the end of the day, if an attorney-client relationship goes sour or a situation otherwise arises requiring or permitting withdrawal, we have a duty to take measures to prevent prejudice to the client, including by protecting confidential client information, both in the filed motion and at the hearing. Lawyers should err on the side of caution as to what is shared with the court and say only as much as is necessary to substantiate the withdrawal—which, in many cases, can be as simple as a statement that there are professional considerations requiring withdrawal. Going beyond that may help get you out of the case, but may also give the client a reason to be mad at you, a reason to never pay you, or even a reason to sue you. source

Withdrawing as Counsel: What California Attorneys Owe Their Clients

It is an unfortunate truth in business: sometimes, despite best intentions at the outset of a professional relationship, a client and her service provider will need to part ways. These breakups could be due to incompatible communication styles, disagreements about strategy, fee disputes, or a host of other reasons. In most industries, when such issues arise, either party is free to terminate the relationship, walk away, and move on to more fruitful pursuits.

Not always so in the legal profession. Attorneys have an ethical duty to act in the best interests of – and minimize harm to – their clients, and this obligation continues even where the attorney client relationship has fundamentally broken down or the client is not paying the lawyer for his services. And where a client is involved in an ongoing lawsuit and does not expressly consent to her attorney’s withdrawal, the attorney must obtain a judge’s consent before ending the representation. See Cal. Code Civ. Procedure § 284.

On what grounds may an attorney withdraw from representing a client in active litigation, without a client’s consent? California Rules of Professional Conduct, Rule 3-700 lists the specific grounds, including, for example: where the client seeks to pursue an illegal course of conduct, where the client breaches an agreement to pay attorney fees, or where the lawyer’s mental or physical condition renders effective representation unreasonably difficult. To prove to the court that one of these grounds exist, lawyers may be inclined to take a “kitchen sink” approach to withdrawal motions. For example, an attorney may wish to attach to his withdrawal motion some attorney-client emails to demonstrate a breakdown in communication; or a list of outstanding invoices to show nonpayment issues; or a declaration explaining, in his own words, certain client demands that the attorney believes are unreasonable.

This would be a grave mistake and would violate California attorney ethics requirements. Rule 3-700 warns that an attorney “shall not withdraw from employment until [he/she] has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client [and] allowing time for employment of new counsel…”. Further, an attorney must at all times maintain lawyer client confidentiality to protect a client’s confidential information , as required under Rule 3-100(A) and California Business and Professions Code §6068(e). As discussed by the California State Bar’s Standing Committee on Professional Responsibility and Conduct, the duty of attorney-client confidentiality “may prevent or limit an attorney from testifying in detail even about the circumstances of a confidential communication where doing so would disclose client ‘confidences’ or ‘secrets.’” Formal Opinion No. 2015-192 (emphasis added).

As such, a withdrawing attorney faces a difficult dilemma: he must disclose enough information to convince a court of the need to withdraw, without sharing any information that is confidential or may prejudice the client. Recognizing this sticky situation, California’s professional ethics Standing Committee has opined that “ordinarily it will be sufficient [for an attorney] to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.” Formal Opinion No. 2015-192. See also Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 591 (holding “[w]here as here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.”) These rules have a counterpart in the American Bar Association’s Model Rules, Rule 1.16, which states that “[t]he lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”

Could an attorney provide more detail to the court while also satisfying his ethical obligations by submitting confidential client information directly to the judge’s private chambers (“in camera”), so that the opposing side and the public cannot see it? The answer is still no: attorneys are prohibited from revealing attorney client privileged communication, even during an “in camera” hearing. See Formal Opinion at p. 6. This remains the case even where a court orders an “in camera” filing, and under those circumstances the ethics Standing Committee advises that an attorney request that his withdrawal motion be transferred to another judge, in order to prevent prejudice to the client that may otherwise arise if the trial judge (e.g. the one to decide/ preside over the merits of the case) were to assess the privileged information. Id. at pp. 9-10.

If an attorney’s withdrawal motion is ultimately denied, the attorney must avail himself of other avenues, such as appeal or other further review of a court’s order. See Formal Opinion No. 2015-192. Once these alternative avenues have been exhausted, the attorney must “evaluate for herself the relevant legal authorities and the particular circumstances…and reach her own conclusion on how to proceed,” while at all times keeping in time the impact of her choice on the client. Id.

Simply put, duties of a lawyer to his client must be forefront in his mind during any attempt to terminate a client relationship, regardless of how justified a withdrawal may be. Striking an ethical balance between competing obligations and goals may be difficult for the attorney, but is required under California law to ensure client protection at all stages of a representation.

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As a legal ethics and risk management advisor, I am often asked whether litigation between an attorney and client is permitted during engagement on another matter. This situation often arises as to legal fee disputes; however, lawsuits between in-house or staff counsel and their employer/client is another concern.

No California law or ethics rule expressly prohibits attorneys from suing clients while continuing to represent them. The Los Angeles County Bar Ethics Committee (“Committee”) has issued advisory opinions (1) regarding fee disputes between a lawyer and current client and the courts have addressed the pertinent California Rules of Professional Conduct (“CRPC”).

The California Supreme Court has held that Rule 3-310(B)(4), “addresses not the existence of general antagonism between lawyer and client, but tangible conflicts between the lawyer’s and client’s interest in the subject matter of the representation.”(2) The committee then opined, while a fee dispute, alone, falls within the rubric of a “general antagonism,” it does not create a per se conflict under Rule 3-310(C).(3)

Rule 3-300 does not apply to a legal services agreement unless it “confers on the member an ownership, possessory, security or other pecuniary interest adverse to the client.” The California Supreme Court has confirmed that a charging lien in a retainer agreement is an adverse pecuniary interest under Rule 3-300.(4) Thus, the committee urged the “line should be drawn” when the dispute changes from a unsecured demand into an action that can be reduced to a judgment or lien, constituting an adverse pecuniary interest.(5) One should ensure the engagement is over before suing a former client for fees.

Even if only “general antagonism” exists, an attorney must not “fail to perform legal services with competence.”(6) If a fee dispute reaches a point where a client’s interests can no longer be adequately represented, withdrawal should be pursued.(7) It is important to consider the applicable statutes of limitation. Filing a fee claim within one-year after representation ends could invite a malpractice claim.(8)
The courts have not specifically addressed whether in-house or staff attorneys may sue their current employer-client; however, the California Supreme Court has fashioned a limited right for such attorneys to sue their former employers for wrongful termination.(9)

The court recognized the common law rule allowing a client to terminate the attorney at any time for any reason is predicated on the relationship of an independent lawyer with a multiple client base,10 not in-house counsel with a single client. Guidance is gleaned from our high court’s rulings: (1) the in-house attorney’s complex, dual responsibilities to employer and client prevent retaliation for participation in an action against the employer/client, but rearranging assignments might ensure confidence in the continuing representation; and, (2) should an in-house attorney be discharged, a wrongful termination claim may be sought under certain circumstances.

Protecting Your Rights Against All Types Of Ethics Violations

Legal ethics refers to an ethical code that governs lawyers and their staff. These ethical rules are dictated by the State of California’s Rules of Professional Conduct.

California Breach Of Legal Ethics Lawyers

When you suspect your lawyer is in violation of California’s code of legal ethics, you may notify the California State Bar, which might decide to investigate and punish the attorney. Sometimes, further action is required if the lawyer in question has caused damages. That is where an experienced legal ethics law firm in Orange County can step in and help you recover the damages caused by poor legal counsel.

Questionable legal ethics can arise in many forms, including the following:

Client Neglect – not returning phone calls, or answering correspondence
Conflicts of Interest – a lawyer may not be representing a client to the best of their ability due to allegiance to another client, or the opposition
Fraudulent Activity – forged documents, doctored evidence, or dishonorable witnesses
Lawyer Fees – improper billing for services rendered
Misappropriation of client funds

Legal Malpractice Lawyers In Orange County

Legal malpractice refers to a situation where a lawyer failed to provide appropriate legal representation (e.g., the lawyer’s work fell below the standard of care). This does not simply mean the lawyer lost your case, since many other factors determine the outcome of a legal matter. For a legal malpractice case to be successful, you must typically prove the following:

Your lawyer provided inaccurate, or unnecessary legal counsel, or performed inappropriate actions that did not meet the community standard.
The lawyer’s negligent behavior harmed you. In other words, the lawyer must have caused some sort of damage to you that was not there before.
A competent lawyer would have achieved a better result.
If your lawyer lost a case where you were the plaintiff, you must prove a competent lawyer would have won the case, and you would have been able to collect the damages you sought in that case.

Legal malpractice comes in many forms. The most common types of legal malpractice include the following:

Missing court deadlines
Failing to address and resolve conflicts of interest
Client abandonment
Inadequate knowledge of the law or legal proceedings, resulting in a trial loss or terrible terms in a contract you signed
Overbilling
Failing to file a lawsuit within the statute of limitations
Unacceptable communication with a client, including not returning phone calls, or failing to keep clients informed source

In the case of Denise Hemmann, attorney in Jackson, Georgia, things did not go well. She has been sanctioned by the Supreme Court of Georgia four previous times for abandonment, failure to properly withdraw from representation and failure to communicate with certain clients about her withdrawal. All this was reported in the Fulton County Daily Report, Friday, November 1, 2019.

Attorney Hemmann sought to receive public sanctions for her behavior, hoping that would be sufficient punishment. The Supreme Court said that was not enough of a punishment. The Court acknowledged that this being her 5th violation, disbarment was appropriate.

However, they also acknowledged that this would be the harshest of punishments. Instead the Court agreed to suspend Attorney Hemmann from practice for a short period of time (unspecified) “to make it clear to her and other members of the Bar the importance of acting with diligence to ensure that the circumstances that lead to misconduct are addressed before additional misconduct can occur.” Opinion Daily Section of F.C.D.R. November 1, 2019

So what does this mean for the rest of us lawyers? It means that communication with our clients is vital to keeping a good name and keeping our license to practice law.

The most likely way a lawyer gets in trouble with the Bar is when his/her escrow account goes haywire or when a client makes a complaint to the State Bar of foul lawyer conduct.

In the case of Attorney Hemmann, she went afoul with the Rules of Professional Conduct a number of times before the Bar dropped the hammer on her. She seemingly was reprimanded four previous times by the Bar.

If you seek to file a complaint against your lawyer, your complaint will be sent by the Bar to your lawyer so the lawyer may respond. Most of the time, after the lawyer responds and explains, the complaint will be dropped. Why is this so? It is usually because the lawyer gives a decent/adequate reason for his behavior/legal conduct. However, that was clearly not the case with Attorney Hemmann. When the lawyer fails to respond to the State Bar’s request for information that is the red flag for the Bar to pursue the matter further.

No lawyer wants to get a letter from the State Bar with a Notice of Complaint/Rule violation inside. But when that happens, the lawyer needs to respond. There is probably a lot more misconduct out there that doesn’t get reported to the State Bar. Clients fire their lawyers and hire others all the time.

Legal malpractice insurance companies ask lawyers if they have ever sued their clients for fees. This is an amazing act of stupidity on the lawyer’s part. If you and your lawyer cannot get along, agree to disagree and go your separate ways. The lawyer then files a Notice of Withdrawal with the Court system, sends a copy to the client and all other interested parties but should never sue his client for fees. To do so will surely find the client filing a Bar Complaint! Take you loss and move on. Easier said than done but true nevertheless. source

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

The Truth News — Thu, 20 Feb 2025 11:42:33 +0000

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records

On September 30, 2018, Governor Edmund G. Brown, Jr. signed two significant pieces of legislation, Senate Bill 1421 and Assembly Bill 748, that will require major changes in how law enforcement agencies respond to requests for peace officer personnel records.

In short, these two statutes will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the California Public Records Act (“CPRA”) request.

Effective January 1, 2019, SB 1421 amends Government Code Section 832.7 to generally require disclosure of records and information relating to the following types of incidents in response to a request under the CPRA:

Records relating to the report, investigation, or findings of an incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
Records relating to the report, investigation or findings of an incident in which the use of force by a peace officer or custodial officer against a person results in death or great bodily injury.
Records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined for the purposes of section 832.7 as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or any other official favor, or under the color of authority. The propositioning for or commission of any sexual act while on duty is considered a sexual assault.
Records relating to an incident in which a sustained finding of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction of evidence or falsifying or concealing of evidence.

AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements. Agencies should work closely with trusted legal counsel to ensure compliance with both statutes.

CA Laws Intersect to Create New, More Immediate Disclosure Obligations for Police Recordings

Now, more than ever, Californians have greater access to police personnel records, body and dashboard camera footage and other recordings acquired by police agencies due to companion laws Senate Bill 1821 and Assembly Bill 748. Signed into law in 2018, these laws alter the way law enforcement agencies respond to California Public Records Act requests for records relating to critical incidents.

Agencies have operated under the authority of these laws since January 2019 (SB 1421) and July 2019 (AB 748), but questions remain about permitted delays and redactions, privacy, criminal proceedings and internal investigations. Agencies did receive some disclosure clarity earlier this year when a judge held that, while SB 1421 applies prospectively, it still requires an agency to publicly release pre-2019 police personnel records it maintains in response to CPRA requests to critical incidents.

However, further case law doesn’t yet exist to help responding agencies answer many of the outstanding questions.

Without court opinions to guide an agency’s practices, agencies can look to the legislative intent of the bills to better understand what images and data are subject to redaction, the limited circumstances that warrant a delay in a record’s release and privacy interests often associated with these types of records.

Closed Off and Confidential

Prior to SB 1421 and AB 748, California was one of the most secretive states when it came to the release of video, audio and other records relating to critical incidents. Generally, exempt from public disclosure under the CPRA, they were protected as investigatory files or confidential police officer personnel records.

Then, courts and policies shifted.

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.

Next came the Los Angeles Police Department’s Critical Incident Video Release Policy, which, revised in 2018, stated that the Department would release to the public video of critical incidents within 45 days of the incident.

At the same time, California lawmakers were grappling with how to mandate similar access statewide. Their debate centered on how to increase transparency while also respecting the privacy rights at issue, and the new LAPD policy provided them a roadmap.

Enter SB 1421 and AB 748.

Critical Incidents Spark Release

Under both laws, the general principles for processing CPRA requests apply equally. As such, the CPRA dictates that an agency must make a determination of whether it has responsive records within 10 calendar days of receiving a request. A rule governing a 14-day extension still applies. Agencies are still expected to produce records within a “reasonable” amount of time, and traditionally, the CPRA allows for a few, specific reasons to delay the production of records. This is where SB 1421 and AB 748 differ.

SB 1421 amended California Penal Code section 832.7 governing police personnel records to strengthen the public’s faith in law enforcement by ensuring its right to access to reports of potential police misconduct, civilians’ rights violation and use or deadly force. source

Law Enforcement Agencies Must Disclose Video and Audio Recordings Even if it is Relating to a “Critical Incident” and Certain Investigation Records Without Pitchess Process Under New Laws

Governor Brown has signed two new laws to require law enforcement agencies to provide, in response to a California Public Records Act request, certain information that was previously exempt from disclosure and, in some instances, was confidential and subject to Pitchess Motion requirements.

AB 748:
Starting on July 1, 2019, video and audio recordings that relate to a “critical incident” are no longer exempt from disclosure under the California Public Records Act. A “critical incident” is defined as either 1) an incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or 2) an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury. The timing of the disclosure is subject to the deadlines already in place in the Public Records Act, except the agency may take additional time, as specified in amended Government Code section 6254(f), if the agency demonstrates that disclosure would substantially interfere with an active criminal or administrative investigation. However, there are specific requirements set forth in Government Code section 6254(f)(4)(A) to justify the delay in disclosure.

SB 1421:
Penal Code sections 832.7 and 832.8 state that peace officer personnel files are confidential and cannot be disclosed absent compliance with Evidence Code sections 1043 and 1046 (i.e., a Pitchess Motion). However, effective January 1, 2019, certain peace officer or custodial officer personnel records are no longer confidential and shall be made available for public inspection pursuant to the Public Records Act.

Specifically, records relating to the report, investigation, or findings of 1) an incident involving the discharge of a firearm at a person by a peace officer or custodial officer; 2) an incident in which the use of force by a peace officer or custodial officer resulted in death or great bodily injury; 3) an incident in which a sustained finding was made regarding sexual assault involving a member of the public; and 4) incidents relating to sustained findings of dishonesty by a peace officer or custodial officer must be made available pursuant to the Public Records Act.

The amended Penal Code section 832.7 contains important provisions regarding the specific types of records that are subject to disclosure, which information may be redacted from the records, and under what circumstances the agency may delay disclosure and for how long.

Law enforcement agencies and custodians of records should prepare for significant numbers of new requests for this information when the new laws take effect, and should consult with legal counsel regarding the possible need for new policies and procedures. source

California bill requires cops to release body cam video

LOS ANGELES (AP) — A longstanding national debate about police transparency and privacy has been reignited in California with legislation that would require law enforcement agencies to release body camera video and recordings of fatal police shootings and other significant incidents.

The proposal, which comes amid a push across the U.S. for body camera recordings to be released more quickly after fatal police shootings, seeks to establish a statewide policy on when body camera footage and other audio and video recordings should be released.

The state Senate’s Public Safety Committee has scheduled a hearing Tuesday on Assembly Bill 748, which would amend California’s public records statute to limit the discretion that police departments have for withholding body camera videos. The proposed measure would require police departments to release video in cases where law enforcement officers use force or in incidents where it is believed there is a violation of law or public policy.

More than a dozen law enforcement organizations oppose the measure and many contend it should be up to local police departments to determine when, if ever, body camera footage should be released.

State lawmakers have failed to pass a handful of different bills in the last few years that addressed body-worn video, including establishing policies on when officers should turn their cameras on and off and when the public would have access to videos.

Several California police departments, including the Los Angeles Police Department, maintain policies denying the disclosure of body camera videos and consider the footage to be investigative records that are exempt from the state’s open records law.

“We have a patchwork of policies and in some instances, very little policy, as to when the public can access the information and when the public can’t,” said Assemblyman Phil Ting, who introduced the bill. “Body cameras were created to improve greater public trust between law enforcement and community members and without access to that video footage we’re not really able to achieve those goals.”

Ting, a Democrat, says the bill “strikes a fair balance” because it also carves out several exemptions, which allow police departments to withhold videos if there’s more of a public interest in not disclosing the recordings and to withhold recordings that are part of an ongoing investigation for up to 90 days.

Advocates of the bill, including the American Civil Liberties Union, say the legislation is an important step forward in ensuring police transparency, especially after fatal police shootings.

“This is an area where California law really lags behind the rest of the country in allowing transparency,” said Peter Bibring, the director of policing practices at the ACLU of Southern California.

Opponents argue that because the bill requires police to release the recordings after 90 days, it could compromise ongoing criminal investigations and disciplinary proceedings.

“This bill will taint ongoing police investigations and all but kills the impartiality of the investigation process,” said Craig Lally, the president of the Los Angeles Police Protective League, the union that represents city police officers. source

AB748 – Audio and Video Recordings

Many law enforcement agencies withhold video and audio recordings of serious use of force incidents as investigatory records under Government Code Section 6254(f). AB748 adds an exception to the investigatory record exemption to now require disclosure of recordings related to a “critical incident.” Critical incident is defined as an incident involving the discharge of a firearm at a person by a peace officer or an incident in which the use of force resulted in death or great bodily injury. A law enforcement agency may redact the recordings if the agency demonstrates that the public interest in disclosure is outweighed by a person’s reasonable expectation of privacy. Agencies should consider using redaction technology to redact, blur, or distort the recording to protect the privacy interest while still allowing disclosure. An agency may only withhold a video or audio recording in its entirety if the agency demonstrates that the privacy interest cannot be adequately protected by use of redaction technology.

A law enforcement agency may withhold the release of a recording for 45 days if the agency determines the disclosure would substantially interfere with an active criminal or administrative investigation. As with the personnel records affected by SB1421, any delay beyond the initial time period will impose a significant burden on the agency to justify the delay. The law enforcement agency will be required to reevaluate the nondisclosure and state its justification to the requestor in writing at regular intervals. source

Assembly Bill 748

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, commencing July 1, 2019, allows 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 allows 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 allows 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 requires 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.

For purposes of this paragraph, a video or audio recording relates to a critical incident if it depicts any of the following incidents:

An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
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. source

Read the full bill text for AB 748

Governor Signs SB 1421 and AB 748, Dramatically Increasing Public Access to Peace Officer Personnel Records

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies in Two Types of Cases Subject to Disclosure as Public Records

Assembly Bill 748, introduced by Assembly member Phil Ting, changes previous law under the California Public Records Act (CPRA) relating to video evidence captured by police officers during investigations and/or detentions of individuals. This Bill was signed into law by Governor Jerry Brown on Sunday, September 30, 2018, and will take effect on July 1, 2019.

Prior to the enactment of AB 748, video and audio evidence of any type (i.e., light-bar camera, body camera, taser camera) was exempt from disclosure as an “investigatory record” under the California Public Records Act if the video evidence recorded an officer contacting/detaining anyone to investigate whether a violation of any law had occurred (Haney v. Superior Court (2001) 26 Cal.4th 1061).

Assembly Bill 748 will require disclosure of a video or audio recording of a “critical incident” within time limits specified in the Bill. The law defines a “critical incident” as either a discharge of a firearm by an officer or the use of any type of force which results in death or great bodily injury. The generally accepted definition of “great bodily injury” in California is any “significant or substantial physical injury.” (Penal Code § 12022.7(f)).

The rules concerning the obligation of a public agency to disclose video or audio evidence of a “critical incident” are somewhat murky, and will undoubtedly have to be clarified through future court proceedings which will occur when an agency refuses to disclose video or audio evidence under the CPRA.

However, at present, the language of AB 748 provides that the public agency’s disclosure obligations are as follows:

In the event the Agency receives a Public Records Act Request relating to an “active criminal or administrative investigation” of an OIS or other use of force causing great bodily injury, the Agency may initially delay disclosure of the video/audio under the “active criminal investigation “exemption for a maximum of 45 days.

Thereafter, in the event the “active criminal and or administrative investigation” continues beyond the initial 45 day period following receipt of the CPRA request, the Agency may thereafter delay disclosure of the audio/video for up to one year if the agency can demonstrate that disclosure would continue to interfere with the active investigation. We expect that this issue will probably be litigated between the person/entity making the CPRA request and the governmental agency in the event that the agency declines to release the audio/video after the initial 45 day period.

AB 748 allows the Agency to continue to delay disclosure even after 1 year. However, if the Agency does that, it is required to demonstrate (most likely in a court of law in a Writ of Mandate proceeding) by “clear and convincing evidence” that disclosure of the audio/video would still “substantially interfere with the investigation.” In addition, if the Agency continues to delay disclosure after one year, the Agency must provide the requestor an estimated date when the Agency will disclose the audio/video, and the Agency is further required to reassess the withholding of the audio/video and notify the requestor every 30 days thereafter.

AB 748 allows the Agency to use “redaction technology” (by blurring faces of persons depicted in a video) to “prevent violations of the reasonable expectation of privacy” of the person(s) depicted. This may mean that the Agency would be permitted to blur the face of a juvenile, a crime victim, a bystander, or a person whose image is captured by a body camera in a hospital (as examples). However, the Bill also states that if the “reasonable expectation of privacy” of a person depicted in a video cannot be protected through the use of redaction technology, the Agency can then continue to withhold disclosure of the audio/video pursuant to a CPRA request. However, in the event the Agency withholds the audio/video from public disclosure under these circumstances, it will be required to provide a copy of the audio/video to the person depicted in the video and/or his/her legal representative (who may then provide the video to the media).

The concern of this Firm about the release of agency captured video and audio of officer-involved shootings or other substantial uses of force resulting in great bodily injury is the fact that this type of evidence is always graphic and can be quite unsettling to persons unaccustomed to seeing the application of force to subdue or arrest individuals. Public disclosure has the potential to create public hysteria concerning virtually any police use of force and therefore increase political and media pressure on elected and appointed officials to take disciplinary action and/or file criminal charges against the peace officers depicted in these videos.

RLS has been undertaking careful analysis of video evidence of law enforcement actions for over two decades. We will continue to perform the critical analyses which often demonstrate that OISs and other uses of force are lawfully permitted uses of force. It is only through careful and considered analysis of these videos that we can ensure that officers involved in these matters are not subjected to erroneous and inflammatory assertions made by members of the public who have little understanding or appreciation of the rights and obligations of officers to use physical force under the law, and who will likely react to video and/or audio evidence of police use of force on only first impression and emotion. source

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. source

More access also below

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

PUBLIC RECORDS REQUEST CONTACTS for Los Angeles County (click here for media policy)

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

Obtaining a Report from LASD Records (You, 3rd party or consel can obtain)

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

from the ACLU we have 2 types of SB 1421 Templates for Sample Requests

1. 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.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

2. 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.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

We also have more robust sample letters below:

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Sample Letter | Police Recordings

Download Word document | Download PDF

The CPRA is now located at Government Code sections 7920.000-7931.000
The First Amendment Coalition also has some useful information to help explain the PRA process.

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:
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 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

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

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

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

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

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

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

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

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

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

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

Misconduct by Government Know Your Rights Click Here

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?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

How do I submit a request for information?

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.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us 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.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

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?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

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 / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

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

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

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

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

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

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

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

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

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.

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

The Truth News — Fri, 14 Feb 2025 21:59:14 +0000

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

A defendant in a criminal case does not choose which district attorney will be assigned. Nor does the defendant have the power to request a different prosecutor. But in most states, the defense can seek to recuse a district attorney (or a prosecuting agency) if there is a bias or conflict of interest.

In California, under Penal Code 1424 a1 PC, a criminal defendant can request a different prosecutor when there is a conflict of interest that may result in the defendant not receiving a fair trial. The request is referred to as a “motion to recuse a prosecutor.” If a judge grants the motion, a substitute district attorney is assigned to the case.

Defendants can also try to remove a judge from a criminal case (or even a civil case) per California Code of Civil Procedure 170.1. This statute says that a judge can be disqualified from a case under certain circumstances, like when:

the judge has personal knowledge of certain facts concerning the proceeding,
the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding, and/or
the judge has a financial interest in a proceeding or in a party to the proceeding.

Jurors are also subject to disqualification. Prior to a criminal trial, a defense attorney can try to remove a potential juror with either a:

“for cause” challenge, or
“peremptory” challenge.

Defendants can try to remove a prosecutor, judge, or juror in either misdemeanor or felony cases.

What is a Motion to Recuse a Prosecutor?

A motion to recuse a prosecutor is a legal request made by defendants in criminal cases whereby they ask the judge to appoint a new district attorney (DA) to the case.¹

Under California’s criminal law, a judge will grant the motion if the following are true:

there is a conflict of interest such that there is a possibility the DA will not act in a just manner, and
the conflict is so serious that it is likely that the defendant will not be treated fairly in all stages of the criminal proceeding.²

Examples of instances in which a judge granted a motion include when:

a prosecutor tampered with evidence, specifically taking efforts to prevent the disclosure of an alleged sexual abuse victim’s medical and psychotherapy records,³ and
there was a real risk that a district attorney’s office would be excessively eager in convicting the defendant.⁴

If a judge grants a motion to recuse, then he/she can remove a district attorney from the case or even an entire district attorney’s office from a case.

If a DA is recused, then another deputy or assistant district attorney is appointed.⁵

If a DA’s office is recused, then a special prosecutor is appointed to the case.⁶

Can a defendant try to remove a judge from a criminal or civil case?

Yes. California Code of Civil Procedure 170.1 CCP states that a party to a civil or criminal case can try to remove a judge “for cause.”

Under CCP 1701.1, the “for cause” reasons as to when a judge can be disqualified are when any one or more of the following are true:

the judge has personal knowledge of disputed facts concerning the proceeding,
the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding,
the judge has a financial interest in a proceeding or in a party to the proceeding,
the judge, or the spouse of the judge, is a party to the proceeding or is an officer, director, or trustee of a party,
a lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding,
by reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding, or
the judge has received a contribution in excess of $1500 from a party or lawyer in the proceeding.⁷

A judge can also remove him- herself from a case, “for cause,” if for any reason:

the judge believes his/her recusal would further the interests of justice,
the judge believes there is a substantial doubt as to his/her ability to be impartial, or
a person aware of the facts might cast doubt on the judge’s ability to be impartial.⁸

A party can seek to disqualify a judge by bringing a motion to recuse. If granted, a new judge is assigned to the case.

Can defendants remove jurors from a case?

Yes. During jury selection, a defense attorney or public defender can try not remove a potential juror either “for cause” or via a “peremptory challenge.”

“For cause” means that a juror has expressed a bias and is not suitable to decide the case. For example, the juror may have stated that, based on religious reasons, he/she cannot pass judgment on the defendant. Lawyers are given an unlimited amount of for cause challenges.

If an attorney exercises a “peremptory challenge”, the attorney does not need to state a specific reason as to why he/she dismisses a juror. Each attorney is allowed between six and twenty peremptory challenges in a case, depending on the alleged offenses.⁹

Note, though, that an attorney cannot remove a juror via a peremptory challenge for reasons related to that juror’s race, religion, gender, or ethnicity.¹⁰

source

Legal References:

California Penal Code 1424a1 PC.
See, for example, People v. Petrisca (2006) 138 Cal.App.4^th 189, People v. Eubanks (1996) 14 Cal.4^th 580, and People v. Connor (1983) 34 Cal.3d 141.
People v. Superior Court (Humberto S.) (2006) 145 Cal.App.4^th 32.
People v. Vasquez (2006) 39 Cal.4^th 47. In Vasquez, the defendant’s mother and stepfather worked in the DA’s office. The court ruled that recusal was proper because the office could act overzealously to avoid the appearance of impropriety.
California Penal Code 1424a1 PC.
See same.
California Code of Civil Procedure 170.1 CCP.
See same.
California Code of Civil Procedure 231 CCP.
See, for example, People v. Wheeler (1978) 22 Cal.3d 258.

Impartiality of the Judge – Judicial Bias

The right to an impartial judge is based on the Due Process Clause of the United States Constitution and is expressly set forth in many state constitutions.[16] In addition, state codes of judicial conduct require that judges be impartial. The ABA Model Code of Judicial Conduct, state code analogs, and the common law of many states use a two-part test for disqualification or recusal – a subjective and objective test.[17] The subjective test is met when the judge believes that she is, in fact, biased; the objective test is met if a disinterested person might reasonably question the judge’s impartiality. If either test is satisfied, the judge must recuse herself.[18]

Counsel may question a judge’s impartiality based on her treatment of, and comments made to or about, counsel or counsel’s client. According to Liteky v. United States,[19] judicial remarks and actions require recusal when “they reveal an opinion that derives from an extrajudicial source” – that is, the judge has relied on evidence from outside the case – or where they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” As to the first part, judges may be exposed to extrajudicial information, but they cannot rely on it.[20] For example, the judge may overhear court staff discussing a parent’s bad behavior in the courthouse lobby, but the judge cannot issue an order based on that information unless it is introduced in evidence. In a Massachusetts case, Care and Protection of Zita, the judge granted temporary custody to CPS based on her memories of a previous dependency case that involved the mother’s other children; as a result, the appellate court reversed.[21] Further, judges cannot actively seek outside information; they cannot do web searches for the parties or the facts at issue, and they cannot ask their law clerks or other staff to do so.[22]

What isn’t Bias?

Inappropriate behavior. Litecky sets a high bar; mean or rude comments by a judge do not constitute bias unless they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”[23] Criticism, disapproval, or even hostility to counsel, the parties, or their cases isn’t bias unless it is extreme or pervasive.[24] Appellate courts are extremely forgiving when judges only make one or two nasty comments; they examine the entire trial to place the judge’s comments in context.[25] Even if the judge’s comment or behavior is clearly inappropriate, judges are given considerable leeway. For instance, in an Ohio case, State v. Johnson, the judge cried during sentencing because she was sympathetic to the victim’s family.[26] The appellate court affirmed; the judge was permitted to exhibit human emotion, and doing so did not show bias.[27]

Preference for a party. Judges may show a preference for one side, but only if that preference is based on information learned from the case.[28] A judge may, therefore, express her preliminary views of the merits of the case so long as those views stem from information learned at trial or observations of the parties during trial. A judge’s preference shows bias only if it is “undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree.”[29] Accordingly, if a parent equivocates during testimony, the judge can question the parent’s credibility and call him a liar. But the judge probably cannot call him the “worst liar ever” (which is excessive) and definitely cannot say he’s a liar based on extra-judicial information.

Criticism of counsel. Judges may scold and criticize counsel in an effort to control the courtroom and the progress of trial.[30] If, for example, counsel is talking over the judge or repeatedly asking leading questions to a witness on direct despite warnings to stop, the judge can criticize counsel’s performance. Indeed, the worse counsel’s behavior, the harsher the judge is permitted to be to manage the trial. A judge is not biased if she held counsel in contempt in a prior case or even in the same case.[31] Even if the judge’s poor behavior is unrelated to counsel’s misconduct, it does not indicate bias unless it is extreme, pervasive, or “reveal[s] such a high degree of favoritism or antagonism as to make fair judgment impossible.”[32]

Remanded or related dependency cases. Judges may sit on the same dependency case on remand, even if the appellate court has found prejudicial errors (although an appellate court can remand specifically to a different judge).[33] Judges who presided over a parent’s prior dependency cases involving the same or other children can sit on new cases, even if the judge terminated parental rights in the prior case.[34] The judge cannot rely on memories of the prior cases when ruling in the current case – she must rely on evidence admitted, or observations made, in the current case.[35]

What is Bias?

Judges do not get a free pass for all types of mistreatment of counsel and clients.

Unfair treatment. Sometimes a judge’s treatment of counsel is so virulent that her fairness must be questioned. For example, where the judge’s extreme harshness:

is not intended to address misbehaving counsel,
has not been triggered by counsel’s misbehavior,
is grossly disproportionate to counsel’s misbehavior, or
is aimed at only one lawyer when all are acting the same way.

In a Massachusetts case, Commonwealth v. Sylvester,[36] the judge ridiculed defense counsel, threatened to cut off her argument, and interrupted her questioning of witnesses. Most of the judge’s harsh comments were directed at her, nearly all disparaged her skills, and many had personal overtones. Meanwhile, defense counsel had conducted a skillful trial, objected respectfully, and “painstakingly attempted to preserve her client’s rights.”[37] The appellate court reversed, holding that the judge’s bias denied the defendant a fair trial.[38]

Denial of due process. Appellate courts will also reverse when a judge’s harsh treatment deprives that party of due process.[39] For example, if counsel bungles a cross-examination, the judge can call counsel inept and warn him publically that he must raise his game. But the judge cannot declare that, as a result of the incompetent cross, the client has rested. Judges also cannot, in order to “punish” a poorly behaving client or underperforming lawyer, refuse to hold a normal trial, act as a prosecutor, improperly restrict counsel’s cross-examination, prevent offers of proof, or unreasonably cut off counsel’s closing.[40]

Early determination of case merits. Appellate courts will reverse for bias when judges make up their minds on the merits before all evidence is presented.[41] Although, as noted above, tentative views of the merits are permissible before the end of trial (provided they arise from what the judge has heard and observed in the case), the judge cannot “decide” a legal issue before the end of trial. For example, in Adoption of Adina,[42] a Massachusetts case, the appellate court reversed because the trial judge stated that the mother was unfit even without a trial. Even appearing to have decided the merits before the close of evidence is reversible. In another Massachusetts case, Adoption of Tia,[43] the appellate court warned that trial judges must maintain not just fairness but the appearance of fairness; otherwise, counsel and the parties will lose faith in the impartiality of the judiciary.[44]

Expression of personal bias or prejudice. Finally, appellate courts will reverse for judicial bias when the judge expresses an actual personal bias or prejudice about the parties or counsel. For instance, judges cannot express disdain for people of a certain faith or color or an opinion that single parents are per se inadequate. In a United States Supreme Court case, Berger v. United States,[45] a criminal case in which the defendant had German ancestry, the trial judge made several insulting comments about Germans, including “[t]heir hearts are reeking with disloyalty.” The Court reversed based on bias.[46]

Removing the Judge

Sometimes it serves the client’s interests to seek recusal of a judge. As noted above, many states apply a two-part test for recusal. First, the subjective test – does the judge believe she is, in fact, biased? Second, the objective test – would a disinterested person reasonably question whether the judge is biased? If either the subjective or objective test is satisfied, the judge must recuse herself.[47] In addition, the judge should recuse herself if she has personal awareness of material, disputed facts.[48]

Counsel must file a motion to recuse at the earliest moment after learning the facts suggesting bias or improper conduct.[49] This can be tricky if the problematic statements or conduct occurred in a lobby conference or sidebar, where judges tend to be less careful with their comments about clients, counsel, and disputed facts. In such a case, counsel must move to recuse immediately after the lobby conference or sidebar. If the lobby conference or sidebar was unrecorded, counsel must, on the record, state what occurred, including the judge’s exact words (to the extent possible); otherwise, there is no record of the judge’s improper statement or action for the appellate court to review. Judges should rule on counsel’s motion to recuse in a timely fashion.[50] If a judge believes recusal is necessary, in most jurisdictions that recusal is for all purposes; the judge should have no involvement with any aspect of the case.[51] source

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.”(Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). This ruling make DA Todd Spitzer Negligent and a conspirator18 U.S. Code § 241 to the violation of my (42-us-code-1983-civil-action ) civil rights and is a violation of code 18 U.S. Code § 242

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.”

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan(1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.) held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987), McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ”

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193 Notification of legal responsibility is “the first essential of due process of law”. See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.” Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal

system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

new-supreme-court-ruling-makes-it-easier-to-sue-police/

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

Juri$diction

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the juri$diction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

“Juri$diction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

how Jurisdiction & immunity is violated Murphy v. Ross, Civil Action No. 3:14cv870 (E.D. Va. Apr. 14, 2015)

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NO IMMUNITY

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

Civil Rights Torts

Thompson v. Clark 2022 – MALICIOUS PROSECUTOR & OFFICER

Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it $anction$ a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.“

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11-04-1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

citedhttps://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Civil Rights

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure.This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894)“Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it(the FourteenthAmendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the(Fifthand Fourteenth) amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885)“The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1“All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.“

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.“

Brady v. U.S., 397 U.S. 742, 748,(1970)“Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; UnitedStates v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442. “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power. Cook vs Iverson, 122, N.M. 251.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v.Stuart.64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind. 336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”Miranda vs.Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.”Miller v. U.S. 230 F 2d 486, 489.

“History is clear that the first ten amendments to the Constitution were adopted to secure certain commonlawrights of the people, against invasion by the Federal Government.” Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

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:
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 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

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.

Functions and Duties of the Prosecutor – Prosecution Conduct

The Truth News — Thu, 06 Feb 2025 08:00:33 +0000

Functions and Duties of the Prosecutor – Prosecution Conduct

Civil Negligence vs Criminal Negligence

Negligence is when someone acts in a way that puts the public at risk. It’s something a reasonable person in the same situation would not do. The law recognizes the difference between civil and criminal negligence.

Civil negligence is what lawyers try to prove in lawsuits. To meet this standard, lawyers must prove someone went over the boundaries of a duty of care by a preponderance of the evidence. It does not have to be extreme; a moment’s inattention while driving could be considered civil negligence.

Criminal negligence takes it much further. It’s a drastic difference from how a normal person would act in the situation and must be proven beyond a reasonable doubt. This means there is no other explanation for why the dangerous situation happened in the first place beyond negligence.

Prosecution Function

Fourth Edition (2017) of the CRIMINAL JUSTICE STANDARDS for the PROSECUTION FUNCTION

Copyright by the American Bar Association. This work (Criminal Justice Standards) may be used for non-profit educational and training purposes and legal reform (legislative, judicial, and executive) without written permission but with a citation to this source. Some specific Standards can be purchased in book format.

[Use the navigation bar on the left side to go to a specific Part or Standard.]

PART I: GENERAL STANDARDS

Standard 3-1.1 The Scope and Function of These Standards

(a) As used in these standards, “prosecutor” means any attorney, regardless of agency, title, or full or part-time assignment, who acts as an attorney to investigate or prosecute criminal cases or who provides legal advice regarding a criminal matter to government lawyers, agents, or offices participating in the investigation or prosecution of criminal cases. These Standards are intended to apply in any context in which a lawyer would reasonably understand that a criminal prosecution could result.

(b) These Standards are intended to provide guidance for the professional conduct and performance of prosecutors. They are written and intended to be entirely consistent with the ABA’s Model Rules of Professional Conduct, and are not intended to modify a prosecutor’s obligations under applicable rules, statutes, or the constitution. They are aspirational or describe “best practices,” and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate for a motion to suppress evidence or dismiss a charge. For purposes of consistency, these Standards sometimes include language taken from the Model Rules of Professional Conduct; but the Standards often address conduct or provide details beyond that governed by the Model Rules of Professional Conduct. No inconsistency is ever intended; and in any case a lawyer should always read and comply with the rules of professional conduct and other authorities that are binding in the specific jurisdiction or matter, including choice of law principles that may regulate the lawyer’s ethical conduct.

(c) Because the Standards for Criminal Justice are aspirational, the words “should” or “should not” are used in these Standards, rather than mandatory phrases such as “shall” or “shall not,” to describe the conduct of lawyers that is expected or recommended under these Standards. The Standards are not intended to suggest any lesser standard of conduct than may be required by applicable mandatory rules, statutes, or other binding authorities.

(d) These Standards are intended to address the performance of prosecutors in all stages of their professional work. Other ABA Criminal Justice Standards should also be consulted for more detailed consideration of the performance of prosecutors in specific areas.

Standard 3-1.2 Functions and Duties of the Prosecutor

(a) The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.

(b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

(c) The prosecutor should know and abide by the standards of professional conduct as expressed in applicable law and ethical codes and opinions in the applicable jurisdiction. The prosecutor should avoid an appearance of impropriety in performing the prosecution function. A prosecutor should seek out, and the prosecutor’s office should provide, supervisory advice and ethical guidance when the proper course of prosecutorial conduct seems unclear. A prosecutor who disagrees with a governing ethical rule should seek its change if appropriate, and directly challenge it if necessary, but should comply with it unless relieved by court order.

(d) The prosecutor should make use of ethical guidance offered by existing organizations, and should seek to establish and make use of an ethics advisory group akin to that described in Defense Function Standard 4-1.11.

(e) The prosecutor should be knowledgeable about, consider, and where appropriate develop or assist in developing alternatives to prosecution or conviction that may be applicable in individual cases or classes of cases. The prosecutor’s office should be available to assist community efforts addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system.

(f) The prosecutor is not merely a case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system. The prosecutor should seek to reform and improve the administration of criminal justice, and when inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, the prosecutor should stimulate and support efforts for remedial action. The prosecutor should provide service to the community, including involvement in public service and Bar activities, public education, community service activities, and Bar leadership positions. A prosecutorial office should support such activities, and the office’s budget should include funding and paid release time for such activities.

Standard 3-1.3 The Client of the Prosecutor

The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim.

When investigating or prosecuting a criminal matter, the prosecutor does not represent law enforcement personnel who have worked on the matter and such law enforcement personnel are not the prosecutor’s clients.

The public’s interests and views should be determined by the chief prosecutor and designated assistants in the jurisdiction.

Standard 3-1.4 The Prosecutor’s Heightened Duty of Candor

(a) In light of the prosecutor’s public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts and in fulfilling other professional obligations. However, the prosecutor should be circumspect in publicly commenting on specific cases or aspects of the business of the office.

(b) The prosecutor should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true, to a court, lawyer, witness, or third party, except for lawfully authorized investigative purposes. In addition, while seeking to accommodate legitimate confidentiality, safety or security concerns, a prosecutor should correct a prosecutor’s representation of material fact or law that the prosecutor reasonably believes is, or later learns was, false, and should disclose a material fact or facts when necessary to avoid assisting a fraudulent or criminal act or to avoid misleading a judge or factfinder.

(c) The prosecutor should disclose to a court legal authority in the controlling jurisdiction known to the prosecutor to be directly adverse to the prosecution’s position and not disclosed by others.

Standard 3-1.5 Preserving the Record

At every stage of representation, the prosecutor should take steps necessary to make a clear and complete record for potential review. Such steps may include: filing motions including motions for reconsideration, and exhibits; making objections and placing explanations on the record; requesting evidentiary hearings; requesting or objecting to jury instructions; and making offers of proof and proffers of excluded evidence.

Standard 3-1.6 Improper Bias Prohibited

(a) The prosecutor should not manifest or exercise, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, gender identity, or socioeconomic status. A prosecutor should not use other improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion. A prosecutor should strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor’s authority.

(b) A prosecutor’s office should be proactive in efforts to detect, investigate, and eliminate improper biases, with particular attention to historically persistent biases like race, in all of its work. A prosecutor’s office should regularly assess the potential for biased or unfairly disparate impacts of its policies on communities within the prosecutor’s jurisdiction, and eliminate those impacts that cannot be properly justified.

Standard 3-1.7 Conflicts of Interest

(a) The prosecutor should know and abide by the ethical rules regarding conflicts of interest that apply in the jurisdiction, and be sensitive to facts that may raise conflict issues. When a conflict requiring recusal exists and is non-waivable, or informed consent has not been obtained, the prosecutor should recuse from further participation in the matter. The office should not go forward until a non-conflicted prosecutor, or an adequate waiver, is in place.

(b) The prosecutor should not represent a defendant in criminal proceedings in the prosecutor’s jurisdiction.

(c) The prosecutor should not participate in a matter in which the prosecutor previously participated, personally and substantially, as a non-prosecutor, unless the appropriate government office, and when necessary a former client, gives informed consent confirmed in writing.

(d) The prosecutor should not be involved in the prosecution of a former client. A prosecutor who has formerly represented a client should not use information obtained from that representation to the disadvantage of the former client.

(e) The prosecutor should not negotiate for private employment with an accused or the target of an investigation, in a matter in which the prosecutor is participating personally and substantially, or with an attorney or agent for such accused or target

(f) The prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships. A prosecutor should not allow interests in personal advancement or aggrandizement to affect judgments regarding what is in the best interests of justice in any case.

(g) The prosecutor should disclose to appropriate supervisory personnel any facts or interests that could reasonably be viewed as raising a potential conflict of interest. If it is determined that the prosecutor should nevertheless continue to act in the matter, the prosecutor and supervisors should consider whether any disclosure to a court or defense counsel should be made, and make such disclosure if appropriate. Close cases should be resolved in favor of disclosure to the court and the defense.

(h) The prosecutor whose current relationship to another lawyer is parent, child, sibling, spouse or sexual partner should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer. A prosecutor who has a significant personal, political, financial, professional, business, property, or other relationship with another lawyer should not participate in the prosecution of a person who is represented by the other lawyer, unless the relationship is disclosed to the prosecutor’s supervisor and supervisory approval is given, or unless there is no other prosecutor who can be authorized to act in the prosecutor’s stead. In the latter rare case, full disclosure should be made to the defense and to the court.

(i) The prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses in cases being handled by the prosecutor’s office. If requested to make such a recommendation, the prosecutor should consider instead referring the person to the public defender, or to a panel of available criminal defense attorneys such as a bar association lawyer-referral service, or to the court. In the rare case where a specific recommendation is made by the prosecutor, the recommendation should be to an independent and competent attorney, and the prosecutor should not make a referral that embodies, creates or is likely to create a conflict of interest. A prosecutor should not comment negatively upon the reputation or abilities of a defense counsel to an accused person or witness who is seeking counsel in a case being handled by the prosecutor’s office.

(j) The prosecutor should promptly report to a supervisor all but the most obviously frivolous misconduct allegations made, publicly or privately, against the prosecutor. If a supervisor or judge initially determines that an allegation is serious enough to warrant official investigation, reasonable measures, including possible recusal, should be instituted to ensure that the prosecution function is fairly and effectively carried out. A mere allegation of misconduct is not a sufficient basis for prosecutorial recusal, and should not deter a prosecutor from attending to the prosecutor’s duties.

Standard 3-1.8 Appropriate Workload

(a) The prosecutor should not carry a workload that, by reason of its excessive size or complexity, interferes with providing quality representation, endangers the interests of justice in fairness, accuracy, or the timely disposition of charges, or has a significant potential to lead to the breach of professional obligations. A prosecutor whose workload prevents competent representation should not accept additional matters until the workload is reduced, and should work to ensure competent representation in existing matters. A prosecutor within a supervisory structure should notify supervisors when counsel’s workload is approaching or exceeds professionally appropriate levels.

(b) The prosecutor’s office should regularly review the workload of individual prosecutors, as well as the workload of the entire office, and adjust workloads (including intake) when necessary to ensure the effective and ethical conduct of the prosecution function.

(c) The chief prosecutor for a jurisdiction should inform governmental officials of the workload of the prosecutor’s office, and request funding and personnel that are adequate to meet the criminal caseload. The prosecutor should consider seeking such funding from all appropriate sources. If workload exceeds the appropriate professional capacity of a prosecutor or prosecutor’s office, that office or counsel should also alert the court(s) in its jurisdiction and seek judicial relief.

Standard 3-1.9 Diligence, Promptness and Punctuality

(a) The prosecutor should act with diligence and promptness to investigate, litigate, and dispose of criminal charges, consistent with the interests of justice and with due regard for fairness, accuracy, and rights of the defendant, victims, and witnesses. The prosecutor’s office should be organized and supported with adequate staff and facilities to enable it to process and resolve criminal charges with fairness and efficiency.

(b) When providing reasons for seeking delay, the prosecutor should not knowingly misrepresent facts or otherwise mislead. The prosecutor should use procedures that will cause delay only when there is a legitimate basis for such use, and not to secure an unfair tactical advantage.

(d) The prosecutor should know and comply with timing requirements applicable to a criminal investigation and prosecution, so as to not prejudice a criminal matter.

(e) The prosecutor should be punctual in attendance in court, in the submission of motions, briefs, and other papers, and in dealings with opposing counsel, witnesses and others. The prosecutor should emphasize to assistants and prosecution witnesses the importance of punctuality in court attendance.

Standard 3-1.10 Relationship with the Media

(a) For purposes of this Standard, a “public statement” is any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication or media, including social media. An extrajudicial statement is any oral, written, or visual presentation not made either in a courtroom during criminal proceedings or in court filings or correspondence with the court or counsel regarding criminal proceedings.

(b) The prosecutor’s public statements about the judiciary, jurors, other lawyers, or the criminal justice system should be respectful even if expressing disagreement.

(c) The prosecutor should not make, cause to be made, or authorize or condone the making of, a public statement that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused, but the prosecutor may make statements that inform the public of the nature and extent of the prosecutor’s or law enforcement actions and serve a legitimate law enforcement purpose. The prosecutor may make a public statement explaining why criminal charges have been declined or dismissed, but must take care not to imply guilt or otherwise prejudice the interests of victims, witnesses or subjects of an investigation. A prosecutor’s public statements should otherwise be consistent with the ABA Standards on Fair Trial and Public Discourse.

(d) A prosecutor should not place statements or evidence into the court record to circumvent this Standard.

(e) The prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement or providing non-public information that the prosecutor would be prohibited from making or providing under this Standard or other applicable rules or law.

(f) The prosecutor may respond to public statements from any source in order to protect the prosecution’s legitimate official interests, unless there is a substantial likelihood of materially prejudicing a criminal proceeding, in which case the prosecutor should approach defense counsel or a court for relief. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(g) The prosecutor has duties of confidentiality and loyalty, and should not secretly or anonymously provide non-public information to the media, on or off the record, without appropriate authorization.

(h) The prosecutor should not allow prosecutorial judgment to be influenced by a personal interest in potential media contacts or attention.

(i) A prosecutor uninvolved in a matter who is commenting as a media source may offer generalized commentary concerning a specific criminal matter that serves to educate the public about the criminal justice system and does not risk prejudicing a specific criminal proceeding. A prosecutor acting as such a media commentator should make reasonable efforts to be well-informed about the facts of the matter and the governing law. The prosecutor should not offer commentary regarding the specific merits of an ongoing criminal prosecution or investigation, except in a rare case to address a manifest injustice and the prosecutor is reasonably well-informed about the relevant facts and law.

(j) During the pendency of a criminal matter, the prosecutor should not re-enact, or assist law enforcement in re-enacting, law enforcement events for the media. Absent a legitimate law enforcement purpose, the prosecutor should not display the accused for the media, nor should the prosecutor invite media presence during investigative actions without careful consideration of the interests of all involved, including suspects, defendants, and the public. However, a prosecutor may reasonably accommodate media requests for access to public information and events.

Standard 3-1.11 Literary or Media Rights Agreements Prohibited

(a) Before the conclusion of all aspects of a matter in which a prosecutor participates, the prosecutor should not enter into any agreement or informal understanding by which the prosecutor acquires an interest in a literary or media portrayal or account based on or arising out of the prosecutor’s involvement in the matter.

(b) The prosecutor should not allow prosecutorial judgment to be influenced by the possibility of future personal literary or other media rights.

(c) In creating or participating in any literary or other media account of a matter in which the prosecutor was involved, the prosecutor’s duty of confidentiality must be respected even after government service is concluded. When protected confidences are involved, a prosecutor or former prosecutor should not make disclosure without consent from the prosecutor’s office. Such consent should not be unreasonably withheld, and the public’s interest in accurate historical accounts of significant events after a lengthy passage of time should be considered.

Standard 3-1.12 Duty to Report and Respond to Prosecutorial Misconduct

(a) The prosecutor’s office should adopt policies to address allegations of professional misconduct, including violations of law, by prosecutors. At a minimum such policies should require internal reporting of reasonably suspected misconduct to supervisory staff within the office, and authorize supervisory staff to quickly address the allegations. Investigations of allegations of professional misconduct within the prosecutor’s office should be handled in an independent and conflict-free manner.

(b) When a prosecutor reasonably believes that another person associated with the prosecutor’s office intends or is about to engage in misconduct, the prosecutor should attempt to dissuade the person. If such attempt fails or is not possible, and the prosecutor reasonably believes that misconduct is ongoing, will occur, or has occurred, the prosecutor should promptly refer the matter to higher authority in the prosecutor’s office including, if warranted by the seriousness of the matter, to the chief prosecutor.

(c) If, despite the prosecutor’s efforts in accordance with sections (a) and (b) above, the chief prosecutor permits, fails to address, or insists upon an action or omission that is clearly a violation of law, the prosecutor should take further remedial action, including revealing information necessary to address, remedy, or prevent the violation to appropriate judicial, regulatory, or other government officials not in the prosecutor’s office.

Standard 3-1.13 Training Programs

(a) The prosecutor’s office should develop and maintain programs of training and continuing education for both new and experienced prosecutors and staff. The prosecutor’s office, as well as the organized Bar or courts, should require that current and aspiring prosecutors attend a reasonable number of hours of such training and education.

(b) In addition to knowledge of substantive legal doctrine and courtroom procedures, a prosecutor’s core training curriculum should address the overall mission of the criminal justice system. A core training curriculum should also seek to address: investigation, negotiation, and litigation skills; compliance with applicable discovery procedures; knowledge of the development, use, and testing of forensic evidence; available conviction and sentencing alternatives, reentry, effective conditions of probation, and collateral consequences; civility, and a commitment to professionalism; relevant office, court, and defense policies and procedures and their proper application; exercises in the use of prosecutorial discretion; civility and professionalism; appreciation of diversity and elimination of improper bias; and available technology and the ability to use it. Some training programs might usefully be open to, and taught by, persons outside the prosecutor’s office such as defense counsel, court staff, and members of the judiciary.

(c) A prosecution office’s training program should include periodic review of the office’s policies and procedures, which should be amended when necessary. Specialized prosecutors should receive training in their specialized areas. Individuals who will supervise attorneys or staff should receive training in how effectively to supervise.

(d) The prosecutor’s office should also make available opportunities for training and continuing education programs outside the office, including training for non-attorney staff.

(e) Adequate funding for continuing training and education, within and outside the office, should be requested and provided by funding sources.

PART II: ORGANIZATION OF THE PROSECUTION FUNCTION

Standard 3-2.1 Prosecution Authority to be Vested in Full-time, Public-Official Attorneys

(a) The prosecution function should be performed by a lawyer who is

(i) a public official,

(ii) authorized to practice law in the jurisdiction, and

(iii) subject to rules of attorney professional conduct and discipline.

Prosecutors whose professional obligations are devoted full-time and exclusively to the prosecution function are preferable to part-time prosecutors who have other potentially conflicting professional responsibilities.

(b) A prosecutor’s office should have open, effective, and well-publicized methods for communicating with, and receiving communications from, the public in the jurisdiction that it serves.

(c) If a particular matter requires the appointment of a special prosecutor from outside the office, adequate funding for this purpose should be made available. Such special prosecutors should know and are governed by applicable conflict of interest standards for prosecutors. A private attorney who is paid by, or who has an attorney-client relationship with, an individual or entity that is a victim of the charged crime, or who has a personal or financial interest in the prosecution of particular charges, or who has demonstrated any impermissible bias relevant to the particular matter, should not be permitted to serve as prosecutor in that matter.

(d) Unless impractical or unlawful, the prosecutor’s office should implement a system for allowing qualified law students, cross-designated prosecutors from other offices, and private attorneys temporarily assigned to the prosecutor’s office, to learn about and assist with the prosecution function.

Standard 3-2.2 Assuring Excellence and Diversity in the Hiring, Retention, and Compensation of Prosecutors

(a) Strong professional qualifications and performance should be the basis for selection and retention for prosecutor positions. Effective measures to retain excellent prosecutors should be encouraged, while recognizing the benefits of some turnover. Supervisory prosecutors should select and promote personnel based on merit and expertise, without regard to partisan, personal or political factors or influence.

(b) In selecting personnel, the prosecutor’s office should also consider the diverse interests and makeup of the community it serves, and seek to recruit, hire, promote and retain a diverse group of prosecutors and staff that reflect that community.

(c) The function of public prosecution requires highly developed professional skills and a variety of backgrounds, talents and experience. The prosecutor’s office should promote continuing professional development and continuity of service, while providing prosecutors the opportunity to gain experience in all aspects of the prosecution function.

(d) Compensation and benefits for prosecutors and their staffs should be commensurate with the high responsibilities of the office, sufficient to compete with the private sector, and regularly adjusted to attract and retain well-qualified personnel. Compensation for prosecutors should be adequate and also comparable to that of public defense counsel in the jurisdiction.

Standard 3-2.3 Investigative Resources and Experts

The prosecutor should be provided with funds for qualified experts as needed for particular matters. When warranted by the responsibilities of the office, funds should be available to the prosecutor’s office to employ professional investigators and other necessary support personnel, as well as to secure access to forensic and other experts.

Standard 3-2.4 Office Policies and Procedures

(a) Each prosecutor’s office should seek to develop general policies to guide the exercise of prosecutorial discretion, and standard operating procedures for the office. The objectives of such policies and procedures should be to achieve fair, efficient, and effective enforcement of the criminal law within the prosecutor’s jurisdiction.

(b) In the interest of continuity and clarity, the prosecution office’s policies and procedures should be memorialized and accessible to relevant staff. The office policies and procedures should be regularly reviewed and revised. The office policies and procedures should be augmented by instruction and training, and are not a substitute for regular training programs.

(c) Prosecution office policies and procedures whose disclosure would not adversely affect the prosecution function should be made available to the public.

(d) The prosecutor’s office should have a system in place to regularly review compliance with office policies.

Standard 3-2.5 Removal or Suspension and Substitution of Chief Prosecutor

(a) Fair and objective procedures should be established by appropriate legislation that empowers the governor or other public official or body to suspend or remove, and supersede, a chief prosecutor for a jurisdiction and designate a replacement, upon making a public finding after reasonable notice and hearing that the prosecutor is incapable of fulfilling the duties of office due to physical or mental incapacity or for gross deviation from professional norms.

(b) The governor or other public official or body should be similarly empowered by law to substitute, in a particular matter or category of cases, special counsel in the place of the chief prosecutor, by consent or upon making a finding after fair process that substitution is required due to a serious conflict of interest or a gross deviation from professional norms.

(c) Removal, suspension or substitution of a prosecutor should not be permitted for improper or irrelevant partisan or personal reasons.

PART III: PROSECUTORIAL RELATIONSHIPS

Standard 3-3.1 Structure of, and Relationships Among, Prosecution Offices

(a) When possible, the geographic jurisdiction of a prosecution office should be determined on the basis of population, caseload, and other relevant factors sufficient to warrant at least one full-time prosecutor and necessary support staff.

(b) In all States, there should be coordination of the prosecution policies of local prosecution offices to improve the administration and consistency of justice throughout the State. To the extent needed, a central pool of supporting resources, forensic laboratories, and personnel such as investigators, additional prosecutors, accountants and other experts, should be maintained by the state government and should be available to assist local prosecutors. A coordinated forum for prosecutors to discuss issues of professional responsibility should also be available. In some jurisdictions, it may be appropriate to create a unified statewide system of prosecution, in which the state attorney general is the chief prosecutor and district or county or other local prosecutors are the attorney general’s deputies.

(c) Regardless of the statewide structure of prosecution offices, a state-wide association of prosecutors should be established. When questions or issues arise that could create important state-wide precedents, local prosecutors should advise and consult with the attorney general, the state-wide association, and the prosecutors in other local prosecution offices.

(d) Federal, state, and local prosecution offices should develop practices and procedures that encourage useful coordination with prosecutors within the jurisdiction and in other jurisdictions. Prosecutors should work to identify potential issues of conflict, coordinate with other prosecution offices in advance, and resolve inter-office disputes amicably and in the public interest.

Standard 3-3.2 Relationships With Law Enforcement

(a) The prosecutor should maintain respectful yet independent judgment when interacting with law enforcement personnel.

(b) The prosecutor may provide independent legal advice to law enforcement about actions in specific criminal matters and about law enforcement practices in general.

(c) The prosecutor should become familiar with and respect the experience and specialized expertise of law enforcement personnel. The prosecutor should promote compliance by law enforcement personnel with applicable legal rules, including rules against improper bias. The prosecutor’s office should keep law enforcement personnel informed of relevant legal and legal ethics issues and developments as they relate to prosecution matters, and advise law enforcement personnel of relevant prosecution policies and procedures. Prosecutors may exercise supervision over law enforcement personnel involved in particular prosecutions when in the best interests of justice and the public.

(d) Representatives of the prosecutor’s office should meet and confer regularly with law enforcement agencies regarding prosecution as well as law enforcement policies. The prosecutor’s office should assist in developing and administering training programs for law enforcement personnel regarding matters and cases being investigated, matters submitted for charging, and the law related to law enforcement activities.

Standard 3-3.3 Relationship With Courts, Defense Counsel and Others

(a) In all contacts with judges, the prosecutor should maintain a professional and independent relationship. A prosecutor should not engage in unauthorized ex parte discussions with, or submission of material to, a judge relating to a particular matter which is, or is likely to be, before the judge. With regard to generalized matters requiring judicial discussion (for example, case-management or administrative matters), the prosecutor should invite a representative defense counsel to join in the discussion to the extent practicable.

(b) When ex parte communications or submissions are authorized, the prosecutor should inform the court of material facts known to the prosecutor, including facts that are adverse, sufficient to enable the court to make a fair and informed decision. Except when non-disclosure is authorized, counsel should notify opposing counsel that an ex parte contact has occurred, without disclosing its content unless permitted.

(c) In written filings, the prosecutor should respectfully evaluate and respond as appropriate to opposing counsel’s arguments and representations, and avoid unnecessary personalized disparagement.

(d) The prosecutor should develop and maintain courteous and civil working relationships with judges and defense counsel, and should cooperate with them in developing solutions to address ethical, scheduling, or other issues that may arise in particular cases or generally in the criminal justice system. Prosecutors should cooperate with courts and organized bar associations in developing codes of professionalism and civility, and should abide by such codes that apply in their jurisdiction.

Standard 3-3.4 Relationship With Victims and Witnesses

(a) “Witness” in this Standard means any person who has or might have information about a matter, including victims.

(b) The prosecutor should know and follow the law and rules of the jurisdiction regarding victims and witnesses. In communicating with witnesses, the prosecutor should know and abide by law and ethics rules regarding the use of deceit and engaging in communications with represented, unrepresented, and organizational persons.

(c) The prosecutor or the prosecutor’s agents should seek to interview all witnesses, and should not act to intimidate or unduly influence any witness.

(d) The prosecutor should not use means that have no substantial purpose other than to embarrass, delay, or burden, and not use methods of obtaining evidence that violate legal rights. The prosecutor and prosecution agents should not misrepresent their status, identity or interests when communicating with a witness.

(e) The prosecutor should be permitted to compensate a witness for reasonable expenses such as costs of attending court, depositions pursuant to statute or court rule, and pretrial interviews, including transportation and loss of income. No other benefits should be provided to witnesses unless authorized by law, regulation, or well-accepted practice. All benefits provided to witnesses should be documented and disclosed to the defense. A prosecutor should not pay or provide a benefit to a witness in order to, or in an amount that is likely to, affect the substance or truthfulness of the witness’s testimony.

(f) A prosecutor should avoid the prospect of having to testify personally about the content of a witness interview. The prosecutor’s interview of most routine or government witnesses (for example, custodians of records or law enforcement agents) should not require a third-party observer. But when the need for corroboration of an interview is reasonably anticipated, the prosecutor should be accompanied by another trusted and credible person during the interview. The prosecutor should avoid being alone with any witness who the prosecutor reasonably believes has potential or actual criminal liability, or foreseeably hostile witnesses.

(g) The prosecutor should advise a witness who is to be interviewed of his or her rights against self-incrimination and the right to independent counsel when the law so requires. Even if the law does not require it, a prosecutor should consider so advising a witness if the prosecutor reasonably believes the witness may provide self-incriminating information and the witness appears not to know his or her rights. However, a prosecutor should not so advise, or discuss or exaggerate the potential criminal liability of, a witness with a purpose, or in a manner likely, to intimidate the witness, to influence the truthfulness or completeness of the witness’s testimony, or to change the witness’s decision about whether to provide information.

(h) The prosecutor should not discourage or obstruct communication between witnesses and the defense counsel, other than the government’s employees or agents if consistent with applicable ethical rules. The prosecutor should not advise any person, or cause any person to be advised, to decline to provide defense counsel with information which such person has a right to give. The prosecutor may, however, fairly and accurately advise witnesses as to the likely consequences of their providing information, but only if done in a manner that does not discourage communication.

(i) Consistent with any specific laws or rules governing victims, the prosecutor should provide victims of serious crimes, or their representatives, an opportunity to consult with and to provide information to the prosecutor, prior to making significant decisions such as whether or not to prosecute, to pursue a disposition by plea, or to dismiss charges. The prosecutor should seek to ensure that victims of serious crimes, or their representatives, are given timely notice of:

(i) judicial proceedings relating to the victims’ case;

(ii) proposed dispositions of the case;

(iii) sentencing proceedings; and

(iv) any decision or action in the case that could result in the defendant’s provisional or final release from custody, or change of sentence.

(j) The prosecutor should ensure that victims and witnesses who may need protections against intimidation or retaliation are advised of and afforded protections where feasible.

(k) Subject to ethical rules and the confidentiality that criminal matters sometimes require, and unless prohibited by law or court order, the prosecutor should provide information about the status of matters in which they are involved to victims and witnesses who request it.

(l) The prosecutor should give witnesses reasonable notice of when their testimony at a proceeding is expected, and should not require witnesses to attend judicial proceedings unless their testimony is reasonably expected at that time, or their presence is required by law. When witnesses’ attendance is required, the prosecutor should seek to reduce to a minimum the time witnesses must spend waiting at the proceedings. The prosecutor should ensure that witnesses are given notice as soon as practicable of scheduling changes which will affect their required attendance at judicial proceedings.

(m) The prosecutor should not engage in any inappropriate personal relationship with any victim or other witness.

Standard 3-3.5 Relationship with Expert Witnesses

(a) An expert may be engaged for consultation only, or to prepare an evidentiary report or testimony. The prosecutor should know relevant rules governing expert witnesses, including possibly different disclosure rules governing experts who are engaged for consultation only.

(b) A prosecutor should evaluate all expert advice, opinions, or testimony independently, and not simply accept the opinion of a government or other expert based on employer, affiliation or prominence alone.

(c) Before engaging an expert, the prosecutor should investigate the expert’s credentials, relevant professional experience, and reputation in the field. The prosecutor should also examine a testifying expert’s background and credentials for potential impeachment issues. Before offering an expert as a witness, the prosecutor should investigate the scientific acceptance of the particular theory, method, or conclusions about which the expert would testify.

(d) A prosecutor who engages an expert to provide a testimonial opinion should respect the independence of the expert and should not seek to dictate the substance of the expert’s opinion on the relevant subject.

(e) Before offering an expert as a witness, the prosecutor should seek to learn enough about the substantive area of the expert’s expertise, including ethical rules that may be applicable in the expert’s field, to enable effective preparation of the expert, as well as effective cross-examination of any defense expert on the same topic. The prosecutor should explain to the expert that the expert’s role in the proceeding will be as an impartial witness called to aid the fact-finders, explain the manner in which the examination of the expert is likely to be conducted, and suggest likely impeachment questions the expert may be asked.

(f) The prosecutor should not pay or withhold any fee or provide or withhold a benefit for the purpose of influencing the substance of an expert’s testimony. The prosecutor should not fix the amount of the fee contingent upon the expert’s testimony or the result in the case. Nor should the prosecutor promise or imply the prospect of future work for the expert based on the expert’s testimony.

(g) The prosecutor should provide the expert with all information reasonably necessary to support a full and fair opinion. The prosecutor should be aware, and explain to the expert, that all communications with, and documents shared with, a testifying expert may be subject to disclosure to opposing counsel. The prosecutor should be aware of expert discovery rules and act to protect confidentiality and the public interest, for example by not sharing with the expert confidences and work product that the prosecutor does not want disclosed.

(h) The prosecutor should timely disclose to the defense all evidence or information learned from an expert that tends to negate the guilt of the accused or mitigate the offense, even if the prosecutor does not intend to call the expert as a witness.

Standard 3-3.6 When Physical Evidence With Incriminating Implications is Disclosed by the Defense

When physical evidence is delivered to the prosecutor consistent with Defense Function Standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client. The prosecutor may, however, offer evidence of the fact of such delivery in response to a foundational objection to the evidence based on chain-of-custody concerns, or in a subsequent proceeding for the purpose of proving a crime or fraud regarding the evidence.

PART IV: INVESTIGATION; DECISIONS TO CHARGE, NOT CHARGE, OR DISMISS; AND GRAND JURY

Standard 3-4.1 Investigative Function of the Prosecutor

(a) When performing an investigative function, prosecutors should be familiar with and follow the ABA Standards on Prosecutorial Investigations.

(b) A prosecutor should not use illegal or unethical means to obtain evidence or information, or employ, instruct, or encourage others to do so. Prosecutors should research and know the law in this regard before acting, understanding that in some circumstances a prosecutor’s ethical obligations may be different from those of other lawyers.

Standard 3-4.2 Decisions to Charge Are the Prosecutor’s

(a) While the decision to arrest is often the responsibility of law enforcement personnel, the decision to institute formal criminal proceedings is the responsibility of the prosecutor. Where the law permits a law enforcement officer or other person to initiate proceedings by complaining directly to a judicial officer or the grand jury, the complainant should be required to present the complaint for prior review by the prosecutor, and the prosecutor’s recommendation regarding the complaint should be communicated to the judicial officer or grand jury.

(b) The prosecutor’s office should establish standards and procedures for evaluating complaints to determine whether formal criminal proceedings should be instituted.

(c) In determining whether formal criminal charges should be filed, prosecutors should consider whether further investigation should be undertaken. After charges are filed the prosecutor should oversee law enforcement investigative activity related to the case.

(d) If the defendant is not in custody when charged, the prosecutor should consider whether a voluntary appearance rather than a custodial arrest would suffice to protect the public and ensure the defendant’s presence at court proceedings.

Standard 3-4.3 Minimum Requirements for Filing and Maintaining Criminal Charges

(a) A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.

(b) After criminal charges are filed, a prosecutor should maintain them only if the prosecutor continues to reasonably believe that probable cause exists and that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.

(c) If a prosecutor has significant doubt about the guilt of the accused or the quality, truthfulness, or sufficiency of the evidence in any criminal case assigned to the prosecutor, the prosecutor should disclose those doubts to supervisory staff. The prosecutor’s office should then determine whether it is appropriate to proceed with the case.

(d) A prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.

Standard 3-4.4 Discretion in Filing, Declining, Maintaining, and Dismissing Criminal Charges

(a) In order to fully implement the prosecutor’s functions and duties, including the obligation to enforce the law while exercising sound discretion, the prosecutor is not obliged to file or maintain all criminal charges which the evidence might support. Among the factors which the prosecutor may properly consider in exercising discretion to initiate, decline, or dismiss a criminal charge, even though it meets the requirements of Standard 3-4.3, are:

(i) the strength of the case;

(ii) the prosecutor’s doubt that the accused is in fact guilty;

(iii) the extent or absence of harm caused by the offense;

(iv) the impact of prosecution or non-prosecution on the public welfare;

(v) the background and characteristics of the offender, including any voluntary restitution or efforts at rehabilitation;

(vi) whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or the offender;

(vii) the views and motives of the victim or complainant;

(viii) any improper conduct by law enforcement;

(ix) unwarranted disparate treatment of similarly situated persons;

(x) potential collateral impact on third parties (children involved, etc..) , including witnesses or victims;

(xi) cooperation of the offender in the apprehension or conviction of others;

(xii) the possible influence of any cultural, ethnic, socioeconomic or other improper biases;

(xiii) changes in law or policy;

(xiv) the fair and efficient distribution of limited prosecutorial resources;

(xv) the likelihood of prosecution by another jurisdiction; and

(xvi) whether the public’s interests in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies.

(b) In exercising discretion to file and maintain charges, the prosecutor should not consider:

(i) partisan or other improper political or personal considerations;

(ii) hostility or personal animus towards a potential subject, or any other improper motive of the prosecutor; or

(iii) the impermissible criteria described in Standard 1.6 above.

(c) A prosecutor may file and maintain charges even if juries in the jurisdiction have tended to acquit persons accused of the particular kind of criminal act in question.

(d) The prosecutor should not file or maintain charges greater in number or degree than can reasonably be supported with evidence at trial and are necessary to fairly reflect the gravity of the offense or deter similar conduct.

(e) A prosecutor may condition a dismissal of charges, nolle prosequi, or similar action on the accused’s relinquishment of a right to seek civil redress only if the accused has given informed consent, and such consent is disclosed to the court. A prosecutor should not use a civil waiver to avoid a bona fide claim of improper law enforcement actions, and a decision not to file criminal charges should be made on its merits and not for the purpose of obtaining a civil waiver.

(f) The prosecutor should consider the possibility of a noncriminal disposition, formal or informal, or a deferred prosecution or other diversionary disposition, when deciding whether to initiate or prosecute criminal charges. The prosecutor should be familiar with the services and resources of other agencies, public or private, that might assist in the evaluation of cases for diversion or deferral from the criminal process.

Standard 3-4.5 Relationship with a Grand Jury

(a) In presenting a matter to a criminal grand jury, and in light of its ex parte character, the prosecutor should respect the independence of the grand jury and should not preempt a function of the grand jury, mislead the grand jury, or abuse the processes of the grand jury.

(b) Where the prosecutor is authorized to act as a legal advisor to the grand jury, the prosecutor should appropriately explain the law and may, if permitted by law, express an opinion on the legal significance of the evidence, but should give due deference to the grand jury as an independent legal body.

(c) The prosecutor should not make statements or arguments to a grand jury in an effort to influence grand jury action in a manner that would be impermissible in a trial.

(d) The entirety of the proceedings occurring before a grand jury, including the prosecutor’s communications with and presentations and instructions to the grand jury, should be recorded in some manner, and that record should be preserved. The prosecutor should avoid off-the-record communications with the grand jury and with individual grand jurors.

Standard 3-4.6 Quality and Scope of Evidence Before a Grand Jury

(a) A prosecutor should not seek an indictment unless the prosecutor reasonably believes the charges are supported by probable cause and that there will be admissible evidence sufficient to support the charges beyond reasonable doubt at trial. A prosecutor should advise a grand jury of the prosecutor’s opinion that it should not indict if the prosecutor believes the evidence presented does not warrant an indictment.

(b) In addition to determining what criminal charges to file, a grand jury may properly be used to investigate potential criminal conduct, and also to determine the sense of the community regarding potential charges.

(c) A prosecutor should present to a grand jury only evidence which the prosecutor believes is appropriate and authorized by law for presentation to a grand jury. The prosecutor should be familiar with the law of the jurisdiction regarding grand juries, and may present witnesses to summarize relevant evidence to the extent the law permits.

(d) When a new grand jury is empanelled, a prosecutor should ensure that the grand jurors are appropriately instructed, consistent with the law of the jurisdiction, on the grand jury’s right and ability to seek evidence, ask questions, and hear directly from any available witnesses, including eyewitnesses.

(e) A prosecutor with personal knowledge of evidence that directly negates the guilt of a subject of the investigation should present or otherwise disclose that evidence to the grand jury. The prosecutor should relay to the grand jury any request by the subject or target of an investigation to testify before the grand jury, or present other non-frivolous evidence claimed to be exculpatory.

(f) If the prosecutor concludes that a witness is a target of a criminal investigation, the prosecutor should not seek to compel the witness’s testimony before the grand jury absent immunity. The prosecutor should honor, however, a reasonable request from a target or subject who wishes to testify before the grand jury.

(g) Unless there is a reasonable possibility that it will facilitate flight of the target, endanger other persons, interfere with an ongoing investigation, or obstruct justice, the prosecutor should give notice to a target of a grand jury investigation, and offer the target an opportunity to testify before the grand jury. Prior to taking a target’s testimony, the prosecutor should advise the target of the privilege against self-incrimination and obtain a voluntary waiver of that right.

(h) The prosecutor should not seek to compel the appearance of a witness whose activities are the subject of the grand jury’s inquiry, if the witness states in advance that if called the witness will claim the constitutional privilege not to testify, and provides a reasonable basis for such claim. If warranted, the prosecutor may judicially challenge such a claim of privilege or seek a grant of immunity according to the law.

(i) The prosecutor should not issue a grand jury subpoena to a criminal defense attorney or defense team member, or other witness whose testimony reasonably might be protected by a recognized privilege, without considering the applicable law and rules of professional responsibility in the jurisdiction.

(j) Except where permitted by law, a prosecutor should not use the grand jury in order to obtain evidence to assist the prosecution’s preparation for trial of a defendant who has already been charged. A prosecutor may, however, use the grand jury to investigate additional or new charges against a defendant who has already been charged.

(k) Except where permitted by law, a prosecutor should not use a criminal grand jury solely or primarily for the purpose of aiding or assisting in an administrative or civil inquiry.

PART V: PRETRIAL ACTIVITIES and NEGOTIATED DISPOSITIONS

Standard 3-5.1 Role in First Appearance and Preliminary Hearing

(a) A prosecutor should be present at any first appearance of the accused before a judicial officer, and at any preliminary hearing.

(b) At or before the first appearance, the prosecutor should consider:

(i) whether the accused has counsel, and if not, whether and when counsel will be made available or waived;

(ii) whether the accused appears to be mentally competent, and if not, whether to seek an evaluation;

(iii) whether the accused should be released or detained pending further proceedings and, if released, whether supervisory conditions should be imposed; and

(iv) what further proceedings should be scheduled to move the matter toward timely resolution.

(c) The prosecutor handling the first appearance should ensure that the charges are consistent with the conduct described in the available law enforcement reports and any other information the prosecutor possesses.

(d) If the accused does not yet have counsel and has not waived counsel, the prosecutor should ask the court not to engage in substantive proceedings, other than a decision to release the accused. The prosecutor should not obtain a waiver of other important pretrial rights, such as the right to a preliminary hearing, from an unrepresented accused unless that person has been judicially authorized to proceed pro se.

(e) The prosecutor should not approach or communicate with an accused unless a voluntary waiver of counsel has been entered or the accused’s counsel consents. If the accused does not have counsel, the prosecutor should make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel, and is given reasonable opportunity to obtain counsel.

(f) If the prosecutor believes pretrial release is appropriate, or it is ordered, the prosecutor should cooperate in arrangements for release under the prevailing pretrial release system.

(g) If the prosecutor has reasonable concerns about the accused’s mental competence, the prosecutor should bring those concerns to the attention of defense counsel and, if necessary, the judicial officer.

(h) The prosecutor should not seek to delay a prompt judicial determination of probable cause for criminal charges without good cause, particularly if the accused is in custody.

Standard 3-5.2 The Decision to Recommend Release or Seek Detention

(a) The prosecutor should favor pretrial release of a criminally accused, unless detention is necessary to protect individuals or the community or to ensure the return of the defendant for future proceedings.

(b) The prosecutor’s decision to recommend pretrial release or seek detention should be based on the facts and circumstances of the defendant and the offense, rather than made categorically. The prosecutor should consider information relevant to these decisions from all sources, including the defendant.

(c) The prosecutor should cooperate with pretrial services or other personnel who review or assemble information to be provided to the court regarding pretrial release determinations.

(d) The prosecutor should be open to reconsideration of pretrial detention or release decisions based on changed circumstances, including an unexpectedly lengthy period of detention.

Standard 3-5.3 Preparation for Court Proceedings, and Recording and Transmitting Information

(a) The prosecutor should prepare in advance for court proceedings unless that is impossible. Adequate preparation depends on the nature of the proceeding and the time available, and will often include: reviewing available documents; considering what issues are likely to arise and the prosecution’s position regarding those issues; how best to present the issues and what solutions might be offered; relevant legal research and factual investigation; and contacting other persons who might be of assistance in addressing the anticipated issues. If the prosecutor has not had adequate time to prepare and is unsure of the relevant facts or law, the prosecutor should communicate to the court the limits of the prosecutor’s knowledge or preparation.

(b) The prosecutor should make effort to appear at all hearings in cases assigned to the prosecutor. A prosecutor who substitutes at a court proceeding for another prosecutor assigned to the case should make reasonable efforts to be adequately informed about the case and issues likely to come up at the proceeding, and to adequately prepare.

(c) The prosecutor handling any court appearance should document what happens at the proceeding, to aid the prosecutor’s later memory and so that necessary information will be available to other prosecutors who may handle the case in the future.

(d) The prosecutor should take steps to ensure that any court order issued to the prosecution is transmitted to the appropriate persons necessary to effectuate the order.

(e) The prosecutor’s office should be provided sufficient resources and be organized to permit adequate preparation for court proceedings.

Standard 3-5.4 Identification and Disclosure of Information and Evidence

(a) After charges are filed if not before, the prosecutor should diligently seek to identify all information in the possession of the prosecution or its agents that tends to negate the guilt of the accused, mitigate the offense charged, impeach the government’s witnesses or evidence, or reduce the likely punishment of the accused if convicted.

(b) The prosecutor should diligently advise other governmental agencies involved in the case of their continuing duty to identify, preserve, and disclose to the prosecutor information described in (a) above.

(c) Before trial of a criminal case, a prosecutor should make timely disclosure to the defense of information described in (a) above that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding, unless relieved of this responsibility by a court’s protective order. (Regarding discovery prior to a guilty plea, see Standard 3-5.6(f) below.) A prosecutor should not intentionally attempt to obscure information disclosed pursuant to this standard by including it without identification within a larger volume of materials.

(d) The obligations to identify and disclose such information continue throughout the prosecution of a criminal case.

(e) A prosecutor should timely respond to legally proper discovery requests, and make a diligent effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court. When the defense makes requests for specific information, the prosecutor should provide specific responses rather than merely a general acknowledgement of discovery obligations. Requests and responses should be tailored to the case and “boilerplate” requests and responses should be disfavored.

(f) The prosecutor should make prompt efforts to identify and disclose to the defense any physical evidence that has been gathered in the investigation, and provide the defense a reasonable opportunity to examine it.

(g) A prosecutor should not avoid pursuit of information or evidence because the prosecutor believes it will damage the prosecution’s case or aid the accused.

(h) A prosecutor should determine whether additional statutes, rules or caselaw may govern or restrict the disclosure of information, and comply with these authorities absent court order.

Standard 3-5.5 Preservation of Information and Evidence

(a) The prosecutor should make reasonable efforts to preserve, and direct the prosecutor’s agents to preserve, relevant materials during and after a criminal case, including

(i) evidence relevant to investigations as well as prosecutions, whether or not admitted at trial;

(ii) information identified pursuant to Standard 3-5.4(a); and

(iii) other materials necessary to support significant decisions made and conclusions reached by the prosecution in the course of an investigation and prosecution.

(b) The prosecutor’s office should develop policies regarding the method and duration of preservation of such materials. Such policies should be consistent with applicable rules and laws (such as public records laws) in the jurisdiction. These policies, and individual preservation decisions, should consider the character and seriousness of each case, the character of the particular evidence or information, the likelihood of further challenges to judgments following conviction, and the resources available for preservation. Physical evidence should be preserved so as to reasonably preserve its forensic characteristics and utility.

(c) Materials should be preserved at least until a criminal case is finally resolved or is final on appeal and the time for further appeal has expired. In felony cases, materials should be preserved until post-conviction litigation is concluded or time-limits have expired. In death penalty cases, information should be preserved until the penalty is carried out or is precluded.

(d) The prosecutor should comply with additional statutes, rules or caselaw that may govern the preservation of evidence.

Standard 3-5.6 Conduct of Negotiated Disposition Discussions

(a) The prosecutor should be open, at every stage of a criminal matter, to discussions with defense counsel concerning disposition of charges by guilty plea or other negotiated disposition.

(b) A prosecutor should not engage in disposition discussions directly with a represented defendant, except with defense counsel’s approval. Where a defendant has properly waived counsel, the prosecutor may engage in disposition discussions with the defendant, and should make and preserve a record of such discussions.

(c) The prosecutor should not enter into a disposition agreement before having information sufficient to assess the defendant’s actual culpability. The prosecutor should consider collateral consequences of a conviction before entering into a disposition agreement. The prosecutor should consider factors listed in Standard 3-4.4(a), and not be influenced in disposition discussions by inappropriate factors such as those listed in Standards 3-1.6 and 3-4.4(b).

(d) The prosecutor should not set unreasonably short deadlines, or demand conditions for a disposition, that are so coercive that the voluntariness of a plea or the effectiveness of defense counsel is put into question. A prosecutor may, however, set a reasonable deadline before trial or hearing for acceptance of a disposition offer.

(e) A prosecutor should not knowingly make false statements of fact or law in the course of disposition discussions.

(f) Before entering into a disposition agreement, the prosecutor should disclose to the defense a factual basis sufficient to support the charges in the proposed agreement, and information currently known to the prosecutor that tends to negate guilt, mitigates the offense or is likely to reduce punishment.

(g) A prosecutor should not agree to a guilty plea if the prosecutor reasonably believes that sufficient admissible evidence to support conviction beyond reasonable doubt would be lacking if the matter went to trial.

Standard 3-5.7 Establishing and Fulfilling Conditions of Negotiated Dispositions

(a) A prosecutor should not demand terms in a negotiated disposition agreement that are unlawful or in violation of public policy.

(b) The prosecutor may properly promise the defense that the prosecutor will or will not take a particular position concerning sentence and conditions. The prosecutor should not, however, imply a greater power to influence the disposition of a case than is actually possessed.

(c) The prosecutor should memorialize all promises and conditions that are part of the agreement, and ensure that any written disposition agreement accurately and completely reflects the precise terms of the agreement including the prosecutor’s promises and the defendant’s obligations. At any court hearing to finalize a negotiated disposition, the prosecutor should ensure that all relevant details of the agreement have been placed on the record. The presumption is that the hearing and record will be public, but in some cases the hearing or record (or a portion) may be sealed for good cause.

(d) Once a disposition agreement is final and accepted by the court, the prosecutor should comply with, and make good faith efforts to have carried out, the government’s obligations. The prosecutor should construe agreement conditions, and evaluate the defendant’s performance including any cooperation, in a good-faith and reasonable manner.

(e) If the prosecutor believes that a defendant has breached an agreement that has been accepted by the court, the prosecutor should notify the defense regarding the prosecutor’s belief and any intended adverse action. If the defense presents a good-faith disagreement and the parties cannot quickly resolve it, the prosecutor should not act before judicial resolution.

(f) If the prosecutor reasonably believes that a court is acting inconsistently with any term of a negotiated disposition, the prosecutor should raise the matter with the court.

Standard 3-5.8 Waiver of Rights as Condition of Disposition Agreements

(a) A prosecutor should not condition a disposition agreement on a waiver of the right to appeal the terms of a sentence which exceeds an agreed-upon or reasonably anticipated sentence. Any waiver of appeal of sentence should be comparably binding on the defendant and the prosecution.

(b) A prosecutor should not suggest or require, as a condition of a disposition agreement, any waiver of post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct, or destruction of evidence, unless such claims are based on past instances of such conduct that are specifically identified in the agreement or in the transcript of proceedings that address the agreement. If a proposed disposition agreement contains such a waiver regarding ineffective assistance of counsel, the prosecutor should ensure that the defendant has been provided the opportunity to consult with independent counsel regarding the waiver before agreeing to the disposition.

(c) A prosecutor may propose or require other sorts of waivers on an individualized basis if the defendant’s agreement is knowing and voluntary. No waivers of any kind should be accepted without an exception for manifest injustice based on newly-discovered evidence, or actual innocence.

(d) Although certain claims may have been waived, a prosecutor should not condition a disposition agreement on a complete waiver of the right to file a habeas corpus or other comparable post-conviction petition.

(e) A prosecutor should not request or rely on waivers to hide an injustice or material flaw in the case which is undisclosed to the defense.

Standard 3-5.9 Record of Reasons for Dismissal of Charges

When criminal charges are dismissed on the prosecution’s motion, including by plea of nolle prosequi or its equivalent, the prosecutor should make and retain an appropriate record of the reasons for the dismissal, and indicate on the record whether the dismissal was with or without prejudice.

PART VI: COURT HEARINGS AND TRIAL

Standard 3-6.1 Scheduling Court Hearings

Final control over the scheduling of court appearances, hearings and trials in criminal matters should rest with the court rather than the parties. When the prosecutor is aware of facts that would affect scheduling, the prosecutor should advise the court and, if the facts are case-specific, defense counsel.

Standard 3-6.2 Civility With Courts, Opposing Counsel, and Others

(a) As an officer of the court, the prosecutor should support the authority of the court and the dignity of the courtroom by adherence to codes of professionalism and civility, and by manifesting a professional and courteous attitude toward the judge, opposing counsel, witnesses, defendants, jurors, court staff and others. In court as elsewhere, the prosecutor should not display or act out of any improper or unlawful bias.

(b) When court is in session, unless otherwise permitted by the court, the prosecutor should address the court and not address other counsel or the defendant directly on any matter related to the case.

(c) The prosecutor should comply promptly and civilly with a court’s orders or seek appropriate relief from such order. If the prosecutor considers an order to be significantly erroneous or prejudicial, the prosecutor should ensure that the record adequately reflects the events. The prosecutor has a right to make respectful objections and reasonable requests for reconsideration, and to seek other relief as the law permits. If a judge prohibits making an adequate objection, proffer, or record, the prosecutor may take other lawful steps to protect the public interest.

Standard 3-6.3 Selection of Jurors

(a) The prosecutor’s office should be aware of legal standards that govern the selection of jurors, and train prosecutors to comply. The prosecutor should prepare to effectively discharge the prosecution function in the selection of the jury, including exercising challenges for cause and peremptory challenges. The prosecutor’s office should also be aware of the process used to select and summon the jury pool and bring legal deficiencies to the attention of the court.

(b) The prosecutor should not strike jurors based on any criteria rendered impermissible by the constitution, statutes, applicable rules of the jurisdiction, or these standards, including race, sex, religion, national origin, disability, sexual orientation or gender identity. The prosecutor should consider contesting a defense counsel’s peremptory challenges that appear to be based upon such criteria.

(c) In cases in which the prosecutor conducts a pretrial investigation of the background of potential jurors, the investigative methods used should not harass, intimidate, or unduly embarrass or invade the privacy of potential jurors. Absent special circumstances, such investigation should be restricted to review of records and sources of information already in existence and to which access is lawfully allowed. If the prosecutor uses record searches that are unavailable to the defense, such as criminal record databases, the prosecutor should share the results with defense counsel or seek a judicial protective order.

(d) The opportunity to question jurors personally should be used solely to obtain information relevant to the well-informed exercise of challenges. The prosecutor should not seek to commit jurors on factual issues likely to arise in the case, and should not intentionally present arguments, facts or evidence which the prosecutor reasonably should know will not be admissible at trial. Voir dire should not be used to argue the prosecutor’s case to the jury, or to unduly ingratiate counsel with the jurors.

(e) During voir dire, the prosecutor should seek to minimize any undue embarrassment or invasion of privacy of potential jurors, for example by seeking to inquire into sensitive matters outside the presence of other potential jurors, while still enabling fair and efficient juror selection.

(f) If the court does not permit voir dire by counsel, the prosecutor should provide the court with suggested questions in advance, and request specific follow-up questions during the selection process when necessary to ensure fair juror selection.

(g) If the prosecutor has reliable information that conflicts with a potential juror’s responses, or that reasonably would support a “for cause” challenge by any party, the prosecutor should inform the court and, unless the court orders otherwise, defense counsel.

Standard 3-6.4 Relationship With Jurors

(a) The prosecutor should not communicate with persons the prosecutor knows to be summoned for jury duty or impaneled as jurors, before or during trial, other than in the lawful conduct of courtroom proceedings. The prosecutor should avoid even the appearance of improper communications with jurors, and minimize any out-of-court proximity to or contact with jurors. Where out-of-court contact cannot be avoided, the prosecutor should not communicate about or refer to the specific case.

(b) The prosecutor should treat jurors with courtesy and respect, while avoiding a show of undue solicitude for their comfort or convenience.

(c) After discharge of a juror, a prosecutor should avoid contacts that may harass or embarrass the juror, that criticize the jury’s actions or verdict, or that express views that could otherwise adversely influence the juror’s future jury service. The prosecutor should know and comply with applicable rules and law governing the subject.

(d) After a jury is discharged, the prosecutor may, if no statute, rule, or order prohibits such action, communicate with jurors to investigate whether a verdict may be subject to legal challenge, or to evaluate the prosecution’s performance for improvement in the future. The prosecutor should consider requesting the court to instruct the jury that, if it is not prohibited by law, it is not improper for jurors to discuss the case with the lawyers, although they are not required to do so. Any post-discharge communication with a juror should not disparage the criminal justice system and the jury trial process, and should not express criticism of the jury’s actions or verdict.

(e) A prosecutor who learns reasonably reliable information that there was a problem with jury deliberations or conduct that could support an attack on a judgment of conviction and that is recognized as potentially valid in the jurisdiction, should promptly report that information to the appropriate judicial officer and, unless the court orders otherwise, defense counsel.

Standard 3-6.5 Opening Statement at Trial

(a) The prosecutor should give an opening statement before the presentation of evidence begins.

(b) The prosecutor’s opening statement at trial should be confined to a fair statement of the case from the prosecutor’s perspective, and discussion of evidence that the prosecutor reasonably believes will be available, offered and admitted to support the prosecution case. The prosecutor’s opening should avoid speculating about what defenses might be raised by the defense unless the prosecutor knows they will be raised.

(c) The prosecutor’s opening statement should be made without expressions of personal opinion, vouching for witnesses, inappropriate appeals to emotion or personal attacks on opposing counsel. The prosecutor should scrupulously avoid any comment on a defendant’s right to remain silent.

(d) When the prosecutor has reason to believe that a portion of the opening statement may be objectionable, the prosecutor should raise that point with defense counsel and, if necessary, the court, in advance. Similarly, visual aids or exhibits that the prosecutor intends to use during opening statement should be shown to defense counsel in advance.

Standard 3-6.6 Presentation of Evidence

(a) The prosecutor should not offer evidence that the prosecutor does not reasonably believe to be true, whether by documents, tangible evidence, or the testimony of witnesses. When a prosecutor has reason to doubt the truth or accuracy of particular evidence, the prosecutor should take reasonable steps to determine that the evidence is reliable, or not present it.

(b) If the prosecutor reasonably believes there has been misconduct by opposing counsel, a witness, the court or other persons that affects the fair presentation of the evidence, the prosecutor should challenge the perceived misconduct by appealing or objecting to the court or through other appropriate avenues, and not by engaging in retaliatory conduct that the prosecutor knows to be improper.

(c) During the trial, if the prosecutor discovers that false evidence or testimony has been introduced by the prosecution, the prosecutor should take reasonable remedial steps. If the witness is still on the stand, the prosecutor should attempt to correct the error through further examination. If the falsity remains uncorrected or is not discovered until the witness is off the stand, the prosecutor should notify the court and opposing counsel for determination of an appropriate remedy.

(d) The prosecutor should not bring to the attention of the trier of fact matters that the prosecutor knows to be inadmissible, whether by offering or displaying inadmissible evidence, asking legally objectionable questions, or making impermissible comments or arguments. If the prosecutor is uncertain about the admissibility of evidence, the prosecutor should seek and obtain resolution from the court before the hearing or trial if possible, and reasonably in advance of the time for proffering the evidence before a jury.

(e) The prosecutor should exercise strategic judgment regarding whether to object or take exception to evidentiary rulings that are materially adverse to the prosecution, and not make every possible objection. The prosecutor should not make objections without a reasonable basis, or for improper reasons such as to harass or to break the flow of opposing counsel’s presentation. The prosecutor should make an adequate record for appeal, and consider the possibility of an interlocutory appeal regarding significant adverse rulings if available.

(f) The prosecutor should not display tangible evidence (and should object to such display by the defense) until it is admitted into evidence, except insofar as its display is necessarily incidental to its tender, although the prosecutor may seek permission to display admissible evidence during opening statement. The prosecutor should avoid displaying even admitted evidence in a manner that is unduly prejudicial.

Standard 3-6.7 Examination of Witnesses in Court

(a) The prosecutor should conduct the examination of witnesses fairly and with due regard for dignity and legitimate privacy concerns, and without seeking to intimidate or humiliate a witness unnecessarily.

(b) The prosecutor should not use cross-examination to discredit or undermine a witness’s testimony, if the prosecutor knows the testimony to be truthful and accurate.

(c) The prosecutor should not call a witness to testify in the presence of the jury, or require the defense to do so, when the prosecutor knows the witness will claim a valid privilege not to testify. If the prosecutor is unsure whether a particular witness will claim a privilege to not testify, the prosecutor should alert the court and defense counsel in advance and outside the presence of the jury.

(d) The prosecutor should not ask a question that implies the existence of a factual predicate for which a good faith belief is lacking.

Standard 3-6.8 Closing Arguments to the Trier of Fact

(a) In closing argument to a jury (or to a judge sitting as trier of fact), the prosecutor should present arguments and a fair summary of the evidence that proves the defendant guilty beyond reasonable doubt. The prosecutor may argue all reasonable inferences from the evidence in the record, unless the prosecutor knows an inference to be false. The prosecutor should, to the extent time permits, review the evidence in the record before presenting closing argument. The prosecutor should not knowingly misstate the evidence in the record, or argue inferences that the prosecutor knows have no good-faith support in the record. The prosecutor should scrupulously avoid any reference to a defendant’s decision not to testify.

(b) The prosecutor should not argue in terms of counsel’s personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.

(c) The prosecutor should not make arguments calculated to appeal to improper prejudices of the trier of fact. The prosecutor should make only those arguments that are consistent with the trier’s duty to decide the case on the evidence, and should not seek to divert the trier from that duty.

(d) If the prosecutor presents rebuttal argument, the prosecutor may respond fairly to arguments made in the defense closing argument, but should not present or raise new issues. If the prosecutor believes the defense closing argument is or was improper, the prosecutor should timely object and request relief from the court, rather than respond with arguments that the prosecutor knows are improper.

Standard 3-6.9 Facts Outside the Record

When before a jury, the prosecutor should not knowingly refer to, or argue on the basis of, facts outside the record, unless such facts are matters of common public knowledge based on ordinary human experience, or are matters of which a court clearly may take judicial notice, or are facts the prosecutor reasonably believes will be entered into the record at that proceeding. In a nonjury context the prosecutor may refer to extra-record facts relevant to issues about which the court specifically inquires, but should note that they are outside the record.

Standard 3-6.10 Comments by Prosecutor After Verdict or Ruling

(a) The prosecutor should respectfully accept acquittals. Regarding other adverse rulings (including the rare acquittal by a judge that is appealable), while the prosecutor may publicly express respectful disagreement and an intention to pursue lawful options for review, the prosecutor should refrain from public criticism of any participant. Public comments after a verdict or ruling should be respectful of the legal system and process.

(b) The prosecutor may publicly praise a jury verdict or court ruling, compliment government agents or others who aided in the matter, and note the social value of the ruling or event. The prosecutor should not publicly gloat or seek personal aggrandizement regarding a verdict or ruling.

PART VII: POST-TRIAL MOTIONS AND SENTENCING

Standard 3-7.1 Post-trial Motions

The prosecutor should conduct a fair evaluation of post-trial motions, determine their merit, and respond accordingly and respectfully. The prosecutor should not oppose motions at any stage without a reasonable basis for doing so.

Standard 3-7.2 Sentencing

(a) The severity of sentences imposed should not be used as a measure of a prosecutor’s effectiveness.

(b) The prosecutor should be familiar with relevant sentencing laws, rules, consequences and options, including alternative non-imprisonment sentences. Before or soon after charges are filed, and throughout the pendency of the case, the prosecutor should evaluate potential consequences of the prosecution and available sentencing options, such as forfeiture, restitution, and immigration effects, and be prepared to actively advise the court in sentencing.

(c) The prosecutor should seek to assure that a fair and informed sentencing judgment is made, and to avoid unfair sentences and disparities.

(d) In the interests of uniformity, the prosecutor’s office should develop consistent policies for evaluating and making sentencing recommendations, and not leave complete discretion for sentencing policy to individual prosecutors.

(e) The prosecutor should know the relevant laws and rules regarding victims’ rights, and facilitate victim participation in the sentencing process as the law requires or permits.

Standard 3-7.3 Information Relevant to Sentencing

(a) The prosecutor should assist the court in obtaining complete and accurate information for use in sentencing, and should cooperate fully with the court’s and staff’s presentence investigations. The prosecutor should provide any information that the prosecution believes is relevant to the sentencing to the court and to defense counsel. A record of such information provided to the court and counsel should be made, so that it may be reviewed later if necessary. If material incompleteness or inaccuracy in a presentence report comes to the prosecutor’s attention, the prosecutor should take steps to present the complete and correct information to the court and defense counsel.

(b) The prosecutor should disclose to the defense and to the court, at or before the sentencing proceeding, all information that tends to mitigate the sentence and is known to the prosecutor, unless the prosecutor is relieved of this responsibility by a court order.

(c) Prior to sentencing, the prosecutor should disclose to the defense any evidence or information it provides, whether by document or orally, to the court or presentence investigator in aid of sentencing, unless contrary to law or rule in the jurisdiction or a protective order has been sought.

Rule 3.8 $pecial Re$pon$ibilitie$ of a Pro$ecutor

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) not institute or continue to prosecute a charge that the prosecutor knows* is not supported by probable cause;
(b) make reasonable* efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable* opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal* has approved the appearance of the accused in propria persona;
(d) make timely disclosure to the defense of all evidence or information known* to the prosecutor that the prosecutor knows* or reasonably should know* tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;* and
(e) exercise reasonable* care to prevent persons* under the supervision or direction of the prosecutor, including investigators, law enforcement personnel, employees or other persons* assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6.
(f) When a prosecutor knows* of new, credible and material evidence creating a reasonable* likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
- (1) promptly disclose that evidence to an appropriate court or authority, and
- (2) if the conviction was obtained in the prosecutor’s jurisdiction,
  - (i) promptly disclose that evidence to the defendant unless a court
    authorizes delay, and
  - (ii) undertake further investigation, or make reasonable* efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(g) When a prosecutor knows* of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. The repealed prior version of this rule that was effective from November 1, 2018 to May 31, 2020, and the Executive Summary concerning those amendments can be found here.

Comment
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.* This rule is intended to achieve those results. All lawyers in government service remain bound by rules 3.1 and 3.4.

[2] Paragraph (c) does not forbid the lawful questioning of an uncharged suspect who has knowingly* waived the right to counsel and the right to remain silent. Paragraph (c) also does not forbid prosecutors from seeking from an unrepresented accused a reasonable* waiver of time for initial appearance or preliminary hearing as a means of facilitating the accused’s voluntary cooperation in an ongoing law enforcement investigation.

[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194] and its progeny. For example, these obligations include, at a minimum, the
duty to disclose impeachment evidence or information that a prosecutor knows* or reasonably should know* casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. Paragraph (d) does not
require disclosure of information protected from disclosure by federal or California laws and rules, as interpreted by case law or court orders. Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. A disclosure’s timeliness will vary with the circumstances, and paragraph (d) is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.

[4] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal* if disclosure of information to the defense could result in substantial* harm to an individual or to the public interest.

[5] Paragraph (e) supplements rule 3.6, which prohibits extrajudicial statements that have a substantial* likelihood of prejudicing an adjudicatory proceeding. Paragraph (e) is not intended to restrict the statements which a prosecutor may make which comply with rule 3.6(b) or 3.6(c).

[6] Prosecutors have a duty to supervise the work of subordinate lawyers and nonlawyer employees or agents. (See rules 5.1 and 5.3.) Ordinarily, the reasonable* care standard of paragraph (e) will be satisfied if the prosecutor issues the appropriate
cautions to law enforcement personnel and other relevant individuals.

[7] When a prosecutor knows* of new, credible and material evidence creating a reasonable* likelihood that a person* outside the prosecutor’s jurisdiction was convicted of a crime that the person* did not commit, paragraph (f) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (f) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable* efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court authorized delay, to the defendant. Disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. (See rule 4.2.) Statutes may require a prosecutor to preserve certain types of evidence in criminal matters. (See Pen. Code, §§ 1417.1-1417.9.) In addition, prosecutors must obey file preservation orders concerning rights of discovery guaranteed by the Constitution and statutory provisions. (See People v. Superior Court (Morales) (2017) 2 Cal.5th 523 [213 Cal.Rptr.3d 581]; Shorts v. Superior Court (2018) 24 Cal.App.5th 709 [234 Cal.Rptr.3d 392].)

[8] Under paragraph (g), once the prosecutor knows* of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Depending upon the
circumstances, steps to remedy the conviction could include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

[9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of paragraphs (f) and (g), though subsequently determined to have been erroneous, does not constitute a violation of this rule. source

PART VIII: APPEALS AND OTHER CONVICTION CHALLENGES

Standard 3-8.1 Duty To Defend Conviction Not Absolute

The prosecutor has a duty to defend convictions obtained after fair process. This duty is not absolute, however, and the prosecutor should temper the duty to defend with independent professional judgment and discretion. The prosecutor should not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred.

Standard 3-8.2 Appeals — General Principles

(a) All prosecutors should be sufficiently knowledgeable about appellate practice to be able to make a record sufficient to preserve issues and arguments for appeal, and should make such a record at the trial court level.

(b) When the prosecutor receives an adverse ruling, the prosecutor should consider whether it may be appealed. If the ruling may be appealed, the prosecutor should consider whether an appeal should be filed, and refer it to an appellate prosecutor if appropriate for decision.

(c) When considering whether an adverse ruling should be appealed, the prosecutor should evaluate not only the legal merits, but also whether it is in the interests of justice to pursue such an appeal, taking into account the benefits to the prosecution, the judicial system, and the public, as well as the costs of the appellate process and of delay to the prosecution, defendant, victims and witnesses.

(d) A prosecutor handling a criminal appeal should know the specific rules, practices and procedures that govern appeals in the jurisdiction.

(e) The prosecutor’s office should designate one or more prosecutors in the office to develop expertise regarding appellate law and procedure, and should develop contacts with other offices’ prosecutors who have such expertise. The prosecutor’s office should develop consistent policies and positions regarding issues that are common or recurring in the appellate process or court. The prosecutor’s office should regularly notify its prosecutors and law enforcement agents about new developments in the law or judicial decisions, and should provide regular training to such personnel on such topics.

(f) A prosecutor handling a criminal appeal who was not counsel in the trial court should consult with the trial prosecutor, but should exercise independent judgment in reviewing the record and the defense arguments. The appellate prosecutor should not make or oppose arguments in an appeal without a reasonable legal basis.

Standard 3-8.3 Responses to New or Newly-Discovered Evidence or Law

If a prosecutor learns of credible and material information creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, the prosecutor should comply with ABA Model Rules of Professional Conduct 3.8(g) and (h). The prosecutor’s office should develop policies and procedures to address such information, and take actions that are consistent with applicable law, rules, and the duty to pursue justice.

Standard 3-8.4 Challenges to the Effectiveness of Defense Counsel

(a) In any post-conviction challenge to the effectiveness of defense counsel, the prosecutor should be cognizant of the defendant’s potential attorney-client privilege with former defense counsel as well as former defense counsel’s other ethical or legal obligations, and not seek to abrogate such privileges or obligations without an unambiguous legal basis, or court order.

(b) If a prosecutor observes, at any stage of a criminal proceeding, defense counsel conduct or omission that might reasonably constitute ineffective assistance of counsel, the prosecutor should take reasonable steps to preserve the defendant’s right to effective assistance as well as the public’s interest in obtaining a valid conviction, while not intruding on a defendant’s constitutional right to counsel. During an ongoing defense representation, the prosecutor should not express concerns regarding possible ineffective assistance on the public record without an unambiguous legal basis or court order, and should not communicate any such concerns directly to the defendant.

Standard 3-8.5 Collateral Attacks on Conviction

If required to respond to a collateral attack on a conviction, the prosecutor should consider all lawful responses, including applicable procedural or other defenses. The prosecutor need not, however, invoke every possible defense to a collateral attack, and should consider potential negotiated dispositions or other remedies, if the prosecutor and the prosecutor’s office reasonably conclude that the interests of justice are thereby served.

sourced https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/

Rule 3-110 Failing to Act Competently

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

Discussion:

The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and non-attorney employees or agents. (See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452; Trousil v. State Bar (1985) 38 Cal.3d 337, 342 [211 Cal.Rptr. 525]; Palomo v. State Bar (1984) 36 Cal.3d 785 [205 Cal.Rptr. 834]; Crane v. State Bar (1981) 30 Cal.3d 117, 122; Black v. State Bar (1972) 7 Cal.3d 676, 692 [103 Cal.Rptr. 288; 499 P.2d 968]; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857-858 [100 Cal.Rptr. 713; 494 P.2d 1257]; Moore v. State Bar (1964) 62 Cal.2d 74, 81 [41 Cal.Rptr. 161; 396 P.2d 577].)

In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances. (Amended by order of Supreme Court, operative September 14, 1992.) source

Rule 5-110 Special Responsibilities of a Prosecutor

Rules of Professional Conduct

Rule 5-110 Special Responsibilities of a Prosecutor

(Rule approved by the Supreme Court, effective Nov. 2, 2017)

The prosecutor in a criminal case shall:

(A) Not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause;
(B) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(C) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal has approved the appearance of the accused in propria persona;
(D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(E) Exercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 5-120.
(F) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
- (1) Promptly disclose that evidence to an appropriate court or authority, and
- (2) If the conviction was obtained in the prosecutor’s jurisdiction,
  - (a) Promptly disclose that evidence to the defendant unless a court authorizes delay, and
  - (b) Undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(G) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Discussion:

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. Rule 5-110 is intended to achieve those results. All lawyers in government service remain bound by rules 3-200 and 5-220.
[2] Paragraph (C) does not forbid the lawful questioning of an uncharged suspect who has knowingly waived the right to counsel and the right to remain silent. Paragraph (C) also does not forbid prosecutors from seeking from an unrepresented accused a reasonable waiver of time for initial appearance or preliminary hearing as a means of facilitating the accused’s voluntary cooperation in an ongoing law enforcement investigation.
[3] The disclosure obligations in paragraph (D) are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S. Ct. 1194] and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. Paragraph (D) does not require disclosure of information protected from disclosure by federal or California laws and rules, as interpreted by case law or court orders. Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. A disclosure’s timeliness will vary with the circumstances, and paragraph (D) is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.
[4] The exception in paragraph (D) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
[5] Paragraph (E) supplements rule 5-120, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. Paragraph (E) is not intended to restrict the statements which a prosecutor may make which comply with rule 5-120(B) or 5-120(C).
[6] Prosecutors have a duty to supervise the work of subordinate lawyers and nonlawyer employees or agents. (See rule 3-110, Discussion.) Ordinarily, the reasonable care standard of paragraph (E) will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.
[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (F) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (F) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court authorized delay, to the defendant. Disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. (See rule 2-100.)
[8] Under paragraph (G), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Depending upon the circumstances, steps to remedy the conviction could include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.
[9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (F) and (G), though subsequently determined to have been erroneous, does not constitute a violation of rule 5-110. (Amended by order of Supreme Court, operative Nov. 2, 2017.)

https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Previous-Rules/Rule-5-110

Five Ethics Rules Every Prosecutor Should Know

1. In addition to a prosecutor’s constitutional and statutory duties to disclose evidence, a prosecutor must, after making a reasonably diligent inquiry, timely disclose to the defense all evidence all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense. See North Carolina Rules of Professional Conduct, Rule 3.8(d), Special Responsibilities of a Prosecutor.

How does this rule differ from a prosecutor’s constitutional obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v. Whitley, 514 U.S. 419 (1995), to learn of and disclose to the defendant materially favorable evidence? The ethical requirement is broader. That is because, unlike a prosecutor’s due process obligation, the ethics rule does not include a materiality requirement. North Carolina State Bar v. Brewer, 05 DHC 37 Reprimand at 26 n.9 (April 4, 2008) (citing Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 714 (1987) (noting that to fulfill ethical obligations under modern ethics codes “the prosecutor must disclose all exculpatory evidence . . . whether or not the evidence presented or omitted is important enough, in the context of all of the evidence presented at trial, to warrant a reversal of the conviction”; concluding that “[a]n ethical violation can, and often will, be present even when due process is not violated.”).

Rule 3.8(d) also requires a prosecutor, in connection with sentencing, to disclose to the defendant and the court “all unprivileged mitigating information known to the prosecutor,” unless disclosure is barred by a protective order.

And a prosecutor’s disclosure duties do not end with a conviction. When a prosecutor knows of new, credible information that creates a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, Rule 3.8(g) requires the prosecutor to disclose that information to the defendant or the defendant’s counsel and the North Carolina Office of Indigent Defense Services (or the federal public defender if a federal conviction).

2. A prosecutor may not prosecute a charge that the prosecutor knows is not supported by probable cause. See North Carolina Rules of Professional Conduct, Rule 3.8(a), Special Responsibilities of a Prosecutor. Thus, if a trial court enters an order suppressing evidence that bars the prosecutor from establishing probable cause that a crime occurred, the only proper course of action is for the prosecutor to dismiss the charge. Likewise, a prosecutor may not seek the filing of charges that are precluded by established law. See North Carolina State Bar v. Paul, 12 DHC 33 (October 17, 2012) (suspending assistant district attorney from the practice of law for one year for instructing law enforcement to seek warrants for charges that she should have known were precluded by established law). The State Bar cautioned in Paul: “It is imperative to the proper administration of justice that prosecutors maintain objectivity and exercise their powers cautiously. Even the best of intentions is insufficient to justify causing a person to be arrested on charges unsupported by law.” Id.

3. A prosecutor may not offer special treatment to a person charged with a crime in exchange for a charitable contribution. While a prosecutor may engage in plea negotiations with a defendant, including negotiations that require a defendant to pay statutorily-authorized restitution, a prosecutor may not reduce or dismiss charges or seek prayers for judgment continued (PJCs) in exchange for a charitable contribution. See RPC 204, Prosecutor’s Offer of Special Treatment to Defendants Who Make Charitable Contributions (July 21, 1995) (ruling that it is prejudicial to the administration of justice for a prosecutor to offer special treatment to individuals charged with traffic offenses or minor crimes in exchange for a direct charitable contribution to the local school system). The State Bar has explained that “[t]he offer of special treatment from a prosecutor to individuals charged with traffic violations or minor criminal offenses in exchange for direct donations to even the most worthy charity implies that justice can be purchased.” Id. This type of conduct is prejudicial to the administration of justice and contravenes a prosecutor’s duty to seek justice, not merely to convict. Id.

4. A prosecutor may not intentionally fail to inform the court of prior convictions that affect a defendant’s sentence. See 2003 Formal Ethics Opinion 5, Participating in Misrepresentation of Prior Record Level in Sentencing Proceeding. To so misinform the court would violate a prosecutor’s duty under Rule 3.3 of candor toward the tribunal. Moreover, a prosecutor may not under-report a defendant’s criminal history even with the permission of the court. 2003 Formal Ethics Opinion 5 (explaining that a prosecutor may not collude with a judge to avoid the requirements of the Structured Sentencing Act; such conduct violates Rule 8.4 as it involves dishonesty and misrepresentation, is prejudicial to the administration of justice, and knowingly assists a judge in violating the rules of judicial conduct).

5. A prosecutor should not publicly comment before trial on the possibility that the defendant will plead guilty, the results of any examinations or tests, the contents of any statement given by the defendant, or the character, credibility, reputation, or criminal record of the defendant or a witness. And, while a prosecutor may publicly state that a named defendant has been charged with a crime, the prosecutor should include a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

Rule 3.6 prohibits an attorney, including a prosecutor, from making an extrajudicial statement that the attorney knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. The commentary to the rule recognizes that, of all such proceedings, criminal jury trials are the most sensitive to extrajudicial speech. Rule 3.6(a) sets forth a safe harbor for extrajudicial speech, permitting prosecutors to state the following:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) the information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;
(7) the identity, residence, occupation and family status of the accused;
(8) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(9) the fact, time and place of arrest; and
(10) the identity of investigating and arresting officers or agencies and the length of the investigation.

The commentary to Rule 3.6 lists “certain subjects that are more likely than not to have a material prejudicial effect on a proceeding,” particularly when they refer to a criminal matter. These subjects include commentary relating to:

- (1) the character, credibility, reputation or criminal record of a suspect or witness in a criminal investigation, the identity of a witness, or the expected testimony of a witness;
- (2) the possibility of a guilty plea or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; and
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.

The commentary notes that a prosecutor may state the fact that a defendant has been charged with a crime, but notes that such a statement is likely to have a material prejudicial effect unless it is accompanied by a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.source

7A-66. Removal of district attorneys.

The Prosecutor’s Duty to Truth

CACI No. 425. “Gross Negligence” Explained
Judicial Council of California Civil Jury Instructions (2023 edition)

Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009

The Prosecutor’s Duty t s Duty to Truth

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

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

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

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: Prosecutorial Investigations

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:
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 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

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

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

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

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?

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us
California – California Tort Claims Act – California Tort Claim Form Here or here from us
Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

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

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

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

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.

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Truth News — Wed, 05 Feb 2025 11:52:15 +0000

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

Handling Extortion – Both the criminal and civil

“Pay me or I’m going to the police…” “Pay me or I will tell the press about you…”
Or perhaps someone has filed a lawsuit against you that has an ulterior motive. These actions might or might not be an abuse of process, a tort in the state of California — or worse, the tort (and potential crime) of extortion. Whether you are owed money and frustrated, or are on the receiving end of demands, you may need legal advice from a professional team of Los Angeles lawyers.

Extortion is not only a criminal act, but also a tort that may be addressed directly, with or without law enforcement. California’s common law allows for a civil cause of action to recover damages due to extortion – including by the wrongful threat of criminal or civil prosecution or tortious interference. In order to assert a claim for extortion, there must have been a threat of prosecution accompanied by knowledge of the falsity of the claim, and the wronged party must have paid the money demanded. See Fuhrman v. California Satellite Systems (1986), 179 Cal. App. 3d 408, overruled on other grounds, Silberg v. Anderson (1990), 50 Cal. 3d 205.

Abuse of Process – Identifying Abuse of Process

Identifying Abuse of Process

As distinguished from extortion, abuse of process is the actual filing of a lawsuit or the taking of other legal action, to achieve a purpose unrelated to the substance or merits of the legal action. To prove an abuse of process, a plaintiff must show that the defendant entertained an ulterior motive in using the legal process, and committed a willful act in a wrongful manner. See Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782, 792. “The gist of the tort is the misuse of the power of the court: It is an act done under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose. Younger v. Solomon (1974), 38 Cal.App.3d 289, 297.

Identifying Extortion

Extortion is defined by California’s Penal Code §518 as the obtaining of property from another, with his or her consent induced by a wrongful use of force or fear. Fear, for purposes of extortion, may be induced by a threat, either to accuse the individual threatened of any crime, or to expose, or impute to the threatened individual any deformity, disgrace, or crime. See Pen. Code, §519.

A threatened action does not have to be illegal for extortion to have occurred. For example, if a person threatens to report an actual crime to the police, the action that is threatened – the reporting of a crime – is not illegal. However, when the threat is coupled with a demand for money, the threat may become illegal and may constitute extortion. “It is the means employed to obtain the property of another which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” Flatley v. Mauro (2006), 39 Cal. 4th 299, 303. In other words, it is the use of fear as a weapon in order to obtain money or property from another which the law condemns, even if the money or property is rightfully owed.

Extortion can occur whether or not the victim is guilty of the crime or indiscretion with which he or she is being threatened. Additionally, the crime or indiscretion does not need to be specific – the accusation need only be such as to put the victim in fear of being accused of some crime. In fact, many extortionists use vague and general accusations in order to magnify the fears of the victim, and in order to protect themselves from prosecution in the event that the attempt fails to extract money.

Identifying When a Situation is Abuse of Process AND Extortion

Threatening criminal prosecution in an effort to gain some advantage in civil litigation can be abuse of process and extortion. For example, in Miguel Mendoza v. Reed Hamzeh (2013) 215 Cal. App. 4th 799, attorney Hamzeh was seeking to recover money owed to his client by Mendoza. He wrote a letter to Mendoza’s attorney stating that, if Mendoza did not pay the money owed, Hamzeh would proceed with filing a civil complaint, as well as reporting Mendoza to the Attorney General, the District Attorney, the Internal Revenue Service, and the Better Business Bureau. The attorney was sued for civil extortion. It is irrelevant whether Mr. Mendoza indeed owed the money, or even whether he should indeed have been reported to the Attorney General, District Attorney, IRS, etc… What the attorney did wrong was to use the fear of that reporting to demand money from Mendoza.

Often, people who are guilty of indiscretion or who do owe money, turn the tables on the extortionist – who may quickly be moved from aggrieved plaintiff to a defendant. The lessons of the David Letterman affair are clear. Demand money for anything that even looks like or smells like an offer to “keep quiet,” and you may very well find yourself sued and/or prosecuted. 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?

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

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

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

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What is a Fiduciary Duty; Breach of Fiduciary Duty

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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

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Anti-SLAPP Law in California

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We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

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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

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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

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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

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Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC – Making a False Police Report in California

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What is Abuse of Process? When the Government Fails Us

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Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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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 –
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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
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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

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Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

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Orange County Data, BodyCam, Police Report, Incident Reports,
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APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

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Request for Proof In-Custody Form Click Here

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Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

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

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Prosecutor’s Obligation to Disclose Exculpatory Evidence

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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

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

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

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.

What is Abuse of Process? When the Government Fails Us

The Truth News — Tue, 04 Feb 2025 05:21:17 +0000

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

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

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

The Truth News — Sun, 02 Feb 2025 19:11:32 +0000

What’s the Difference between Abuse of Process and Malicious Prosecution?

Which of the following cases fits into the tort of abuse of process?
and…
Which of the following cases fits into the tort of malicious prosecution?

In February 2015, Dr. John Costino and his wife Barbara filed a malicious prosecution lawsuit against Cape May County. He was accused approximately six years prior to the lawsuit of distributing illegal painkillers. He was acquitted in 2012.

In 2007, the case of Pinewood Homes, Inc. v. Harris resulted in the defendant obtaining a judgment for several thousands of dollars. Harris feared the plaintiff, Ritche, wouldn’t pay. So Harris obtained a preliminary injunction against Rictche and all companies he had ownership interests in, including Pinewood Homes. However, Pinewood wasn’t a part of Richie’s lawsuit because Ritchie was only a shareholder. Pinewood then sued Harris for trying to maliciously coerce it into paying Ritchie’s judgment.

In 2014, a federal jury ruled Homicide Detective Dwayne violated Hephzibah Olivia Lord’s civil rights for maliciously arresting her. The arrest was for a murder she didn’t commit. Her boyfriend allegedly drank an energy drink, vodka, then committed suicide.

Abuse of Process and Malicious Prosecution are similar on the surface, but they have essential differences.

Abuse of Process aka Abu$e of Proce$$

Let’s say someone doesn’t have a reasonable basis to file a lawsuit against you. Maybe he subpoenas you, continuously files motions, or seeks a retaining order. These are examples of abuse of process. Abuse of process occurs when someone uses the legitimate judicial process for reasons not intended.

With this tort, a plaintiff has to prove four elements for a successful claim:

The defendant used the process
The defendant had an ulterior motive
The defendant misused the process
The plaintiff incurred injuries and damages from the result of the abuse of process

To prove element one, you show the defendant used the “process” such as filing:

Counterclaims
Appeals
Motions for sanction
Summons requests
Change of location
trying to hold someone on warrants that are based on charges you plan on dropping as they are malicious but you still request them to turn themselves in and be held on the bond for those crimes for which you know have no merit!

Showing facts and circumstances usually determine whether there was an ulterior motive. The court looks at the intent of the plaintiff and defendant. “Having an ulterior motive” is defined as attempting to gain an economic, business, or legal advantage.

A misuse of process generally exists if the defendant:

Used the process in a way not intended, contemplated, or authorized by law
Used the process in an intentional way and knew it would be misused

The best way to think about abuse of process is with two words: improper purpose. The defendant had an improper purpose when filing any lawsuit against the plaintiff.

Malicious Prosecution aka Maliciou$ Prosecution

Let’s say you were at work at 4 p.m. on Tuesday. That day an individual robbed a bank near your workplace. It just happens to be where your ex-spouse worked. You have an alibi and witnesses who place you at work. You didn’t commit the crime. In fact, there’s no reasonable way you could have committed the crime. You’re charged and prosecuted for a committing a bank robbery. Later, the charges are dropped or you’re found not guilty. This is referred to as malicious prosecution.

This tort has four elements a plaintiff must show to win her case:

The plaintiff was prosecuted for a crime she didn’t commit and found not guilty
No probable cause existed to show the plaintiff was guilty of committing the crime
The prosecutor knew no probable cause existed and still continued to prosecute and try to prove guilt
In some jurisdictions, a plaintiff must also prove she suffered injuries because of the criminal prosecution beyond typical mental distress.

You’ve probably figured out by now which of the cases are abuse of process or malicious prosecution. Just in case you’re not sure:

Malicious prosecution
Abuse of process
Malicious prosecution

Although both torts are similar, they are distinct. As you’ve read, malicious prosecution typically happens after a criminal case where a person was not guilty of the crime. However, they were still prosecuted for it anyway. With abuse of process, an individual is trying to gain an advantage by filing a frivolous lawsuit against someone. source

Malicious Prosecution, Abuse of Process, and False Arrest

People falsely accused of crimes, and prosecuted as a result, have been severely harmed

Malicious Prosecution

Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:

charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
intends to punish a person by harassing them with criminal proceedings;
intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
charges a person with a crime to divert attention from the actual perpetrator.

A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.

A person forced to defend a groundless civil suit likewise suffers damages and may be able to recover for malicious prosecution.

To recover on a state-law malicious-prosecution claim, an Ohio plaintiff must prove:

(a) malice in instituting or continuing the criminal or civil legal proceeding;
(b) lack of probable cause or reasonable grounds to believe the allegations; and
(c) termination of the prosecution or civil lawsuit in favor of the accused.

Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.

Relationship to “Abuse of Process” and “False Arrest”

Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.

Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.

Malicious Prosecution and False Arrest as a Civil-Rights Violation

In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.

Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:

(a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
(b) there was a lack of probable cause for the criminal prosecution;
(c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
(d) the criminal proceeding was resolved in the plaintiff’s favor.

What To Do If You Believe You Have Been a Victim of Malicious Prosecution

Especially in this class of cases, usually involving an abuse of power or oversight in the justice system, it can be unclear what options are available. With shaken confidence in the efficacy and access to justice provided by the judicial system, it may appear as if there is nowhere else to turn for help. But this is not the case. source

If someone has wrongfully sued you or prosecuted you for a crime, you may have a valid malicious prosecution or abuse of process claim.

Malicious prosecution and abuse of process are related types of civil lawsuits where one person (the plaintiff) sues another person (the defendant) for, in a prior case, trying to use the legal system against the plaintiff in an inappropriate manner. The prior case can be either criminal or civil in nature. This article discusses the elements of a malicious prosecution or abuse of process claim.

Difference between Malicious Prosecution and Abuse of Process

While the two claims are similar, malicious prosecution and abuse of process claims have some essential differences.

A plaintiff can sue for abuse of process when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. A plaintiff can sue for malicious prosecution when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she doesn’t have a case. In addition, the plaintiff must have already obtained a “favorable termination” of the defendant’s malicious case (the case was dismissed or there was a ruling in the plaintiff’s favor, for example) before he or she can sue for malicious prosecution.

Essential Elements of Abuse of Process

As we mentioned, a plaintiff can sue for abuse of process when a defendant starts a legal process intending to obtain results for which the process was not designed.

A “legal process” can be any part of a lawsuit, not simply the entire lawsuit. For example, a defendant’s personal injury lawsuit might have been legitimate, but the use of a particular deposition or other smaller, discrete aspect of the lawsuit may not have been. Even though the lawsuit was valid, the plaintiff can still sue for abuse of process based on the illegitimate deposition.

The best way to think of the “improper purpose” requirement in an abuse of process claim is that, although the defendant had a technical right to use the legal process, he or she did so to extort something else from the plaintiff—or example, trying to tie up property in a divorce proceeding in order to get the other spouse to agree to different child visitation rights. It’s worth noting that abuse of process claims are notoriously difficult to prove and are often unsuccessful.

Essential Elements of Malicious Prosecution

A successful malicious prosecution claim usually requires all of the following:

the defendant began or continued a criminal or civil legal proceeding without reasonable grounds to believe the basis for it (or the allegations made in it)
the defendant had a purpose other than simply getting a judgment in the proceeding, and
the proceeding has terminated in the favor of the person that was being prosecuted or sued (i.e. the future plaintiff in the malicious prosecution suit must first win the suit against him or her).

Let’s look at these elements a little more closely.

A Proceeding

A criminal proceeding is any process where the government can punish a person for offenses ranging from homicide to a parking ticket.

A civil proceeding is typically where the plaintiff is not a governmental entity—although the defendant might be—and the plaintiff is suing for money damages or an injunction.

Even if the people bringing the criminal or civil proceeding think they have a winning case and are suing for a legitimate reason when they begin the case, they can be guilty of malicious prosecution if they discover a reason they cannot win during the case, and continue the case for improper motives anyway.

Reasonable Grounds

The person bringing the original prosecution or lawsuit must have reasonable grounds (also called probable cause), i.e. a reasonable person in their place would think that the legal action was legitimate and had a chance of winning.

However, if the person bringing the prosecution or lawsuit knows that the action is illegitimate, there is no need to prove that a hypothetical reasonable person would also think it was illegitimate.

Improper Purpose

Typically, if a lack of reasonable grounds is proved, an improper purpose will be assumed. This means that the plaintiff in a malicious prosecution action does not necessarily need to prove that the defendant had an improper purpose. However, if the defendant can prove that he or she had a proper purpose, the plaintiff will not win.

For example, if a defendant was only doing what his or her attorney recommended, even though the lawsuit had no probable cause, then the defendant may not be liable for malicious prosecution if she unreasonably, but mistakenly thought her lawsuit was legitimate.

Favorable Termination

Finally, the plaintiff in a malicious prosecution suit must have successfully defended against and won the previous illegitimate lawsuit. In other words, if a person was convicted of criminal charges or had to pay damages in a civil lawsuit, he or she probably cannot sue for malicious prosecution based on that criminal or civil legal action. source

Malicious Prosecution and Abuse of Process

Malicious prosecution is a common law intentional tort aimed at actors, whether private or government, which commence or institute, or cause to be commenced or instituted, unwarranted or unjustified legal proceedings against a Defendant. At common law, the elements of a Malicious Prosecution claim included:

intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal);
that is brought without probable cause and;
that action is dismissed in favor of the victim of the malicious prosecution.

In some jurisdictions, the term “malicious prosecution”, which denotes the wrongful initiation of criminal proceedings, is distinguished from the “malicious use of process” which denotes the wrongful initiation of civil proceedings.

In Nevada, the elements of a malicious prosecution claim, as outlined in Chapman v. City of Reno, are similar to the common law elements and are as follows:

a lack of probable cause to commence the prior action;
malice;
favorable termination of the prior action; and
damages.

Generally, criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity. However, a malicious prosecution claim will prevail where intentional conduct that rises to the level of either maliciousness or gross or reckless indifference to the consequences of a prosecutor or judges actions can be proved by clear and convincing evidence.

Abuse of Process

Abuse of process is a cause of action sounding in tort arising from one party making a malicious and deliberate misuse or perversion of the courts and the law not justified by the underlying legal action and is to be distinguished from malicious prosecution in that it is aimed at the use and misuse of legal process for illegitimate purposes, regardless of the merit of the underlying claim.

At common law, the elements of an abuse of process claim were as follows:

the existence of an ulterior purpose or motive underlying the use of process, and
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.

In Nevada, the elements required to prevail on an abuse of process claim are similar to those existing at common law: (1) an ulterior purpose other than resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Kovacs v. Acosta. An “ulterior purpose” includes any “improper motive” underlying the issuance of legal process. See Laxalt v. McClatchy, 622 F. Supp. 737, (D. Nev. 1985).

“Process,” as used here means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court, administrative agency or government entity. 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.

As discussed above, the distinguishing factor between abuse of process claims and malicious prosecution is the purpose for which the complained of legal proceedings are instituted; generally, the person who abuses process wishes only to harass, molest, bother, annoy, pester or otherwise injure the other by use of the law and courts in such a way and for such a purpose as offends justice, such as an unjustified arrest or an unfounded criminal prosecution. source

Differentiation of Abuse of Process and Malicious Prosecution

Abuse of Process and Malicious Prosecution Lawyer

There are differentiating factors between abuse of process and malicious prosecution. Abuse of process refers to the notion that the plaintiff can sue when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. Malicious prosecution, on the other hand, can sue when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she does not have a case. Within this concept, the plaintiff must have obtained a “favorable termination” of the defendant’s malicious case before they can sue for malicious prosecution.

Abuse of Process

The elements of an abuse of process claim include an ulterior purpose by the defendant/defendants other than resolving a legal dispute, and a willful act in the use of the legal process not proper in the regular conduct of the proceeding. The legal process portion can be within any part of the lawsuit, not simply the entire lawsuit. The ulterior purpose requirement of this notion can be thought up as even though the defendant has a technical right to use the legal process, they did so to extort something else from the plaintiff.

Malicious Prosecution

Malice refers to evil intent, which may be implied if the defendant acted in willful disregard of the rights of the plaintiff, wrongfully acted with a justifiable cause, or acted or omitted a duty betraying the willful disregard of a social duty. Malicious prosecution claims require several components. First, a proceeding. Even if an individual that has brought a criminal or civil proceeding thinks that they can have a winning case, suing for a legitimate reason at the beginning of the case, they can be guilty of malicious prosecution if a reason is discovered that they cannot win during the case, continuing the case for improper motives. Secondly, reasonable grounds is another notion that must be enacted to show malicious prosecution. An individual bringing the original prosecution or lawsuit must have probable cause to which the legal action was legitimate and has a chance of winning. Contrarily, if the individual bringing the lawsuit knows that the action is illegitimate, there is not a need to prove that a hypothetical reasonable person would share the idea that it was illegitimate.

Next, improper purpose is an additional concept that must be displayed. This notion is piggybacked with the

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