Ericksen Arbuthnot’s Appellate Practice Group Achieves Significant Victory in Anti-SLAPP Case with Right to Recover Substantial Attorney Fees

August 2015

Ericksen Arbuthnot’s Appellate Practice Group has won another appeal. On July 15, 2015, the California Supreme Court declined to review Glassner v. Smith 2015 WL 2127065 Unpub. (“Glassner”), so the First Appellate District’s Decision ruling in favor of Ericksen Arbuthnot’s clients is now final. In Glassner, the Court of Appeal ruled in favor of four of Ericksen Arbuthnot’s clients, reversing the trial court’s order denying their special motion to strike under Code of Civil Procedure section 425.16, a statute designed to prevent so-called Strategic Lawsuits Against Public Participation. (Code Civ. Proc., § 425.16 [also known as California’s “anti-SLAPP” statute].) In addition, the Court of Appeal affirmed the trial court’s order granting the anti-SLAPP motion filed by Ericksen Arbuthnot’s fifth client. (Glassner, p. 1.) All five clients thus prevailed on appeal, entitling them to recover their attorney fees and costs when the case returns to the trial court. (Civ. Code, § 425.16, subd. (c)(1) [“. . . a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees . . .”].) As this case shows, California’s anti-SLAPP statute can be an effective tool for defendants because it can end litigation promptly, while obligating plaintiffs to pay the defendants’ attorney fees.

This case arose from a bitter dispute among members of a homeowners’ association (“the HOA”). The plaintiff campaigned for an HOA board seat while accusing existing HOA board members of fraud and mishandling HOA funds. Following the plaintiff’s election as an HOA board member, the client homeowners campaigned to have him recalled from the board. As part of their recall effort, the clients established a website which included statements that the plaintiff had been convicted in two criminal cases, was sued for sexual harassment by a former employee, and had assisted in prosecuting his live-in partner’s legal actions against the HOA. The plaintiff was recalled by majority vote. The plaintiff then sued the clients for defamation, slander, and false light, claiming that the website was libelous and asserting that one of the clients had slandered him by implying that he was a sexual deviant at an HOA meeting. The plaintiff sought more than $2 million in damages. All five clients filed an anti-SLAPP motion in the trial court, arguing that the plaintiff’s claims arose from protected activity, i.e., the clients’ right to free speech in advocating for the recall of the plaintiff from the HOA board of directors. The trial court granted the anti-SLAPP motion in favor of one client, but denied the motion with respect to the remaining four clients. Both sides appealed.

In a consolidated appeal, the First Appellate District ruled in favor of all five of Ericksen Arbuthnot’s clients. Significantly, the Court of Appeal found that the plaintiff was a “limited purpose public figure” given his status as an HOA director. (Glassner, p. 7-8.) As a consequence, the plaintiff bore the heightened burden of showing a reasonable probability that he could produce clear and convincing evidence that the defendants acted with “actual malice” under New York Times v. Sullivan (1964) 376 U. S. 254, meaning that defendants either knew the allegedly defamatory material was false or acted with a “reckless disregard” for its falsity. (Glassner, p. 7, citing Young v. CBS Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 562-563.) After reviewing the lengthy record and noting the inconsistencies in plaintiff’s evidence, the Court of Appeal found that the plaintiff did not meet this heightened burden, so it dismissed all of plaintiff’s claims against all five of Ericksen Arbuthnot’s clients.

As noted above, the anti-SLAPP statute provides that prevailing defendants on a special motion to strike may recover attorney fees. (Civ. Code, § 425.16, subd. (c)(1).) Accordingly, Ericksen Arbuthnot will file a motion to recover its clients’ substantial attorney fees following remittitur to the trial court.

Gregory A. Mase, Jason W. Mauck and J.J. Minioza handled the case in the trial court and Court of Appeal. Mr. Mase can be reached at 415.887.8071 or ; Mr. Mauck can be reached at 510.832.7770 or ; and Mr. Minioza can be reached at 510.832.7770 or . .