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World Financial Group v. HBW Ins. & Fin. Svcs. (Cal. Ct. App. - April 16, 2009)

By Shaun Martin

The thing about the anti-SLAPP statute is that it's sufficiently powerful to be abused. Like here.

There's no way that the conduct here counts as "protected activity". The trial court and Court of Appeal find as much. And it's not even close. But defendants still get to obtain a stay of the action below (as well as increase the fees associated with prosecuting the matter) by making an anti-SLAPP motion that, in my view, borders on (but likely doesn't cross) the frivolous.

I do think, however, that the Court of Appeal did the case right, wholly apart from its correct adjudication of the merits. For one thing, it granted the plaintiff's motion for a calendar preference; as a result, the appeal and stay only lasted for around six months, rather than the usual year or two. For another, while not saying things affirmatively mean about the defendant's appeal, one does get the keen sense that Justice Perren (and the rest of the panel) were far from keen about defendant's arguments. Including adding the following in footnote 8, a reference appended to a sentence that reads "This rule has been recognized in a line of cases affirming the denial of anti-SLAPP motions, none of which are cited in defendants' opening brief." --

"WFG discusses each case in its brief, yet defendants' reply brief simply ignores three of them and makes only passing references to the other two. Other courts have found such conduct sanctionable. (See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-886 [$750 sanction assessed for repeated citation to unpublished case and failure to address controlling case after respondent identified both errors]; see also Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 [appellant and his attorney assessed $32,000 sanction for, among other things, "utter failure to discuss the most pertinent legal authority"].) While we decline to impose sanctions here, we do not look lightly upon such a blatant omission of relevant law and treat it as an implicit concession of defendants' claim. (See generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 9:58, pp. 9-17 to 9-18 [warning counsel that "[y]our failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and mislead the court"].) "

Ouch. That's not what you want in a published opinion if you're anyone. Much less if you work for a big firm like, say, Davis Wright Tremaine -- as counsel for defendants (John LeCrone, Mary Haas, and Rochelle Wilcox) in fact do -- in which a published slam like that tends to get around. (Mary's probably glad in retrospect that the caption misspells her last name!)

Plus, you gotta love anyone -- including but not limited to Justice Perren -- who manages to work in the following line (from The Godfather) at page 12 of the opinion: "As Salvatore Tessio said to Tom Hagen, 'Tell Mike it was only business.' So it is here."

I laughed out loud. First, it's a great movie. Second, it's a great line. Third, it's a line that's actually somewhat descriptive, and in fact does somewhat stand for the point that Justice Perren's trying to make in the opinion(rather than being just randomly funny, which is usually good enough anyway). [That said, I will say that the actual meaning of this line in the movie is perhaps the opposite of what Justice Perren's using it for. Since the point of the line is that, yes, it's sort of just business, but at the same time the nature of the act makes it sort of something else as well. To use a line from a different (inferior, but still tolerable) quasi-gangster movie, when Jelly says in Analyze This "Sorry, Doc, nothing personal" as he's about to kill Ben Sobel, Sobel (played by Billy Crystal) says: ""Don't kid yourself, Jelly. It doesn't get more personal." That's somewhat the point.]

But I still love the Godfather line. Especially since it's from Abe Vigoda. Anyone who can use a line from Fish even half-plausibly in a judicial opinion is a god in my book.

P.S. - To answer the inevitable question that arises whenever you say Vigoda's name: Alive.

Full post as published by California Appellate Report on April 16, 2009 (boomark / email).