In
Grewal v. Jammu, the First Appellate District, Division Two, filed an Opinion on January 11, 2011, that makes our worst errors public.
Plaintiff Grewal filed a defamation action. Defendants filed an anti-SLAPP motion three years after plaintiff's original complaint. It was scheduled to be heard five days before the trial date. The moving papers were over 206 pages long, and that page count did not even include a request for judicial notice of thousands of pages from three court files, including a 54-page court opinion. Defendants claimed the complaint involved an "issue of public interest," while plaintiff argued otherwise. The trial court concluded the first three causes of action did not involve an issue of public interest and that plaintiff had demonstrated a probability of prevailing on the fourth. The defendants appealed.
The court affirmed the judgment below, finding that defendants essentially conceded plaintiff had met his burden under the anti-SLAPP statute. It noted, "And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost - and prejudicial delay. It is time for plaintiff's case to be heard on the merits.
Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal." (Emphasis added.)
What is important - at least to me - is the court's irritation with the legal documents filed below and on appeal. For instance, it noted that the memorandum of points and authorities submitted in support of the anti-SLAPP motion did not have "argument headings," so the court had trouble determining defendants' arguments. The defendants failed to identify the exact subsection that they claimed applied. The court made some assumptions, which were confirmed at oral argument. (Another good reasons never to waive oral argument. The court may need your help in clearing up any confusion that you may have created.)
As to the defendants' brief, the court had this to say:
"The opening brief . . . is 72 pages long. Following an abbreviated 'Statement of the Case,' the brief spends almost 21 pages on a 'summary of facts,' reciting the claimed facts from the Jammu defendants' perspective only, their 'summary of [plaintiff's] evidence and declarations' consisting of a grand total of 20 lines. Such advocacy is not to be condoned . . . Beyond that, the brief is not well organized, and lacks any meaningful or logical argument headings, jumping from arguments referring to 'issues of public interest' (Arguments IV and V) to 'free exercise of religion' (Argument VI) to 'limited public figure' (Argument VII) to 'public figure status." (Arguments VIII, IX, and X.) The brief is, in a word, unhelpful."
The court found the same problems existed with the 66-page reply brief, and in summation, that both briefs fail to "come to grips with the issue here." The court opined that the anti-SLAPP motion should never have been brought, resulting in an appeal that is utterly lacking in merit. The court concluded, "Something is wrong with this picture." In the beginning, anti-SLAPP motions were brought - as intended - against big developers or companies that sought to silence and retaliate against the complaints of individual plaintiffs. As the courts construed the anti-SLAPP provisions broadly, more and more lawsuits were caught up in this procedure, including commercial speech cases. While intended as an early screening device for bad lawsuits, these motions were frequently used to stop actions, including discovery, in their tracks, detour to an immediate appeal, and if successful, the winning party could recover attorneys fees. The court noted the "explosion" of such motions and was especially critical of the right to an immediate appeal. The court balanced the loss of the right of an appeal against the plight of the plaintiff, who must expend thousands of dollars on appeal, while the case is stopped in its tracks for around two years. In conclusion, the court spent a considerable amount of time exploring the abuses of anti-SLAPP motions, including statistics, in the hope the Legislature would do something to fix the situation.
On a more personal note, the days of transparency in practicing law may well be over when the appellate court criticizes your briefs in a very public forum. In fact, that public scolding may well be preserved for eternity. And with clients spending more and more time researching their attorneys, is that something you would want your clients to see?