Federal Judiciary

Daniell v. Riverside Partners I LLP (Cal. Ct. App. - June 14, 2012)

By Shaun Martin

The SLAPP statute says a person can move to dismiss a lawsuit against that person based upon conduct performed by that person in furtherance of that person's First Amendment rights.  Plaintiff files a malicious prosecution lawsuit against Defendant X based upon a lawsuit filed and dismissed not by X, but by Y, and asserts that X is Y's successor in interest.  X files an anti-SLAPP motion, but Plaintiff opposes the motion on the ground that X isn't being sued by First Amendment rights performed by X, so an anti-SLAPP motion is improper.  Which, at least foundationally, is right.  Y didn't do anything at all, much less exercise any rights.  So how can he file an anti-SLAPP motion under the statute?

The trial court rejected this argument as "too cute by half," and the Court of Appeal essentially agrees.  The latter holds that because corporations are fictional entities, they change forms all the time, and Corporation X effectively is Corporation Y, and hence can file an anti-SLAPP motion.  But the Court of Appeal expressly notes that its holding is limited to fictional entities like corporations, and expresses no view (one way or the other) as to anti-SLAPP motions filed by individuals.

The Court of Appeal gets the result right, and I agree with its assessment of the policy implications of its holding.  But I think it can reach this outcome more easily, and in a way that avoids the unnecessary limitation of its arguments to fictional entities.

When X is sued as a successor-in-interest to Y, it's being sued "in Y's shoes."  We do this all the time.  When you are sued in Y's shoes, you generally get to assert any defenses to the lawsuit that Y could assert.  I see no reason not to hold that those include anti-SLAPP motions.  It's just applying the usual rule.

Importantly, such a straightforward application of doctrine wouldn't rely upon the existence of the defendant as a fictional entity.  Nor would it be limited to situations that involve (as here) successors in interest.  Many parties -- both fictional and otherwise -- are sued in similar capacities.  Successors.  Executors.  Trustees.  Vicariously liable defendants.  Under my rule, we'd allow all of these parties to file anti-SLAPP motions not because they're fictional and have "shape-shifted" to a different entity, but rather because they're being sued in essentially a representative capacity.

Let me give you an example.  One which actually comes up all the time.  Imagine that Employee exercises his First Amendment right, Plaintiff sues both Employee and Employer (which is alleged to be vicariously liable for Employee's tort), and Employee and Employer both file anti-SLAPP motions.  The former is surely being sued based on the exercise of rights by "that person," but the Employer isn't -- the Employer hasn't really done anything.  (Ditto, by the way, if you replace "Employee" and "Employer" with "Minor" and "Parent".)  We'd have no problem -- indeed, have no problem -- with routinely letting Employer file an anti-SLAPP motion.  Not because Employer is a fictional entity whose identity is synonymous with Employee -- they're undoubtedly different entities.  But rather because Employer stands in Employee's shoes for purposes of liability just as it stands in his shoes for purposes of the anti-SLAPP motion.  And that rule makes sense.

So I like the outcome here.  It's just and makes sense.  But I'd get there in a different, and much broader, way.

P.S. - A random note.  In analyzing the case, the opinion mentions that even fictional entities have First Amendment rights.  That's unquestionably true.  There are literally thousands of cases that so hold, and in which expressive activity almost identical to the type at issue here was involved.  But rather than cite those cases, the Court of Appeal cites Citizens United.  Admittedly, that case did indeed so hold, and I surely understand that this might be the first case that springs to mind.  But it's a little bit like citing Dred Scott for the proposition that federal diversity jurisdiction only exists between citizens.  Sure, the case did indeed so hold.  But it might be preferable to cite an opinion less controversial, less likely to be overturned, or (at a minimum) more on point.

Full post as published by California Appellate Report on June 14, 2012 (boomark / email).