Comments on Sexual Partners Not Covered By Anti-SLAPP

Public comments about a lawyer’s competence are protected by the anti-SLAPP statute, but comments about whom she sleeps with aren’t, a California appeals court said Mar. 6 in an unpublished decision.

In an omnibus complaint, Lawyer Lenore Albert brought multiple defamation claims for a host of unrelated, unflattering statements various individuals and companies allegedly made about her. In one of three appeals, the Court of Appeals of the State of California for the Fourth Appellate District said nearly all of Albert’s claims against three lawyer defendants were correctly dismissed under the anti-SLAPP statute. The acronym stands for Strategic Lawsuit Against Public Participation, and the law gives defendants a quick way to dismiss various tort claims if the complained-of conduct was protected free speech.

Most of the statements the lawyers allegedly made were protected because they related to litigation or “a matter of ‘public interest’ involving Albert’s ethics or competence as a high-profile anti-foreclosure anti-bank attorney,” the court said.

But comments one of the lawyers allegedly made about Albert sleeping with her boyfriend, employees, family members, and “her dog” aren’t protected by the law, the court said, so she could proceed with those defamation claims.

The anti-SLAPP law gives California lawyers broad latitude to criticize other attorneys in public—but attorneys would be wise to refrain from barbs that are too personal, the case makes clear.

‘Antipathy to Hydras’

Acting Presiding Justice William W. Bedsworth rejected Albert’s general argument that lawyers shouldn’t receive the “special privileges” afforded by the anti-SLAPP statute. Albert argued that the law is unfair because plumbers “don’t receive analogous protection in their work.” Justice Bedsworth said that “right or wrong,” that’s the way it is and there is “nothing we can do about it.”

The appeals court also rejected Albert’s argument that she should have been allowed to amend her pleading again. The appeals court said she could not avoid the statute by amending her claim and cited the court’s “antipathy to hydras” in this area of law.

Sue Your Lawyer

Lawyer Mitchell Hannah represented a homeowner in a case against a contractor who was represented by Albert. The contractor got an adverse ruling at the trial level on his cross-complaint, but Albert succeeded in getting the ruling reversed on appeal.

Before the appeal concluded, the contractor received a phone message saying it lost because of Albert’s incompetence and it would be better off suing Albert for malpractice than pursing a “hopeless appeal.”

Albert sued Hannah for defamation, interference with an economic advantage, and intentional infliction of emotional distress based on Hannah contacting, either directly or indirectly through his client, a represented party without Albert’s consent in violation of California Rules of Professional Conduct 2-100.

Hannah filed an anti-SLAPP motion, which the trial court granted.

The appeals court relied on a 1993 case, which said the litigation privilege under § 47 of California’s Civil Code was to be given “expansive reach.” “For well over a century, communications with ‘some relation’ to judicial proceedings have been absolutely immune from tort liability,” the appeals court said.

The appeals court determined that both prongs of the anti-SLAPP statute were met—that Albert’s claims against Hannah qualified for anti-SLAPP treatment and lacked minimal merit. The statements related to judicial proceedings and thus were protected. The appeals court said the litigation “privilege subsumes Albert’s claims” and Albert suffered no damages because, despite Hannah’s statements, Albert’s client stayed with her and eventually won its appeal.

Thus, Hannah’s anti-SLAPP motion was properly granted, the court said.

She’s ‘Scamming’ You

Albert also sued lawyer Devin Lucas, who opposed Albert in a civil matter. After a hearing, Lucas approached Albert and her clients in the parking lot to discuss the case. But “when Albert rebuffed him, Lucas ‘lost it,’ and began yelling to Albert’s clients to convey his low opinion of their lawyer’s ethics and competence,” the court said. He told the clients Albert “was scamming homeowners on reverse mortgages,” she alleged.

The appeals court agreed with the trial court that the parking lot exchange passed the “‘some relation’ to litigation test.” And Lucas’s statements “could not be proven false or were too vague, to be actionable” for defamation, the appeals court said. Any comment Albert was a “bad attorney is just opinion” and the “‘reverse mortgage scams’ snippet too vague,” the court said.

As with Hannah, the appeals court said Albert couldn’t “show actual breach or disruption of the contractual relationship she had with her clients,” to succeed in her claim.

Lucas’s anti-SLAPP motion thus was properly granted, the court said.

Too Many to List

Lawyer David Seal did not oppose Albert in any case. The appeals court said Seal was an “erstwhile all[y] who turned against her and was sued for his subsequent comments about her.”

The appeals court distilled Albert’s “barrage” of allegations against Seal into four categories: (1) comments made to police about Albert’s involvement in an “Occupy” rally; (2) “unspecified” statements to Albert’s clients that she was “taking their money and ‘not working on their cases’”; (3) “unspecified” statements to the effect that Albert’s office was closing and she was going to be disbarred; and (4) “a statement that Albert was sleeping with Patrick Reeners [her boyfriend], her dog, her employees, or her family.”

The appeals court agreed with the trial court that the statements to police were protected by the litigation privilege and that items 2 and 3 were protected as speech about “an issue of public interest, namely Albert’s competence to practice law.”

But “old-fashioned imputations of promiscuousness” don’t pass prong one of the anti-SLAPP statute because they aren’t “in connection with litigation, or an exercise of free speech on a matter of public interest,” the appeals court said.

Associate Justices Eileen C. Moore and Richard D. Fybel concurred.

The case is Albert v. Hannah, 2018 BL 75034, Cal. Ct. App., 4th Dist., G052748, unpublished 3/6/18.