Five Amici Briefs Filed to Challenge Gerbosi and Support the Broad Construction of Anti-Slapp Law

By Evan Mascagni
California Anti-Slapp Project
April 1, 2013

http://www.casp.net/uncategorized/five-amici-briefs-filed-to-challenge-gerbosi-and-support-the-broad-construction-of-anti-slapp-law/

CASP has blogged and questioned whether Gerbosi v. Gaims, (2011) 193 Cal.App.4th 435, was the worst decision ever decided under the California anti-SLAPP law, as it held that the mere allegation that defendant’s conduct was criminal means that the anti-SLAPP law does not apply.  Yesterday, five amici briefs were filed in Malin v. Singer, a case at the California Court of Appeal, which among other things, could help repudiate Gerbosi.  The California Anti-SLAPP Project represents two of the appellants in this case – a woman who has been sued because her lawyer sent a pre-litigation demand letter, and her husband.

The five amici briefs that challenge the trial court’s decision that the demand letter was criminally extortionate and support the broad construction of California’s anti-SLAPP law were filed yesterday by the Association of Southern California Defense Counsel (ASCDC), the Beverly Hills Bar Association, the Survivors Network of those Abused by Priests (SNAP), the American Civil Liberties Union of Southern California (ACLU/SC), and Hinshaw & Culbertson LLP.  Professor George (Rock) Pring and the Center for Public Interest Law, among others, signed on to the BHBA brief.  Survivors, activists, survivors’ rights organizations, and law firms that represent survivors all signed on to the SNAP brief.

Association of Southern California Defense Counsel

Written by attorney Harry W.R. Chamberlain II of Mnatt, Phelps & Phillips, LLP and attorney Michael A. Colton.

The Association of Southern California Defense Counsel (ASCDC) is one of the nation’s most preeminent regional defense organizations that encompasses a diverse group of more than 2,200 defense attorneys in southern California.  Their brief notes that the Malin trial court’s narrow construction of the anti-SLAPP law has implications far beyond attorney demand letters.  In Malin, the trial court held that defendants’ pre-litigation demand letter was not protected by the anti-SLAPP law because it was criminally extortionate, and the court based its decision in significant part on Gerbosi, whichinvolved allegations or wiretapping and illegal eavesdropping.  ASCDC’s brief lays out why Gerbosi is a horrible opinion, which gives trial court judges who don’t like the anti-SLAPP law a legal basis for denying meritorious anti-SLAPP motions.

Beverly Hills Bar Association

Written by attorney Thomas H. Vidal of Abrams Garfinkel Margolis Bergson, LLP.

The Beverly Hills Bar Association is a nationally recognized major metropolitan bar association based in Beverly Hills and serves over 15,000 lawyers who live or work on the Westside of Los Angeles County.  Like ASCDC’s brief, the Beverly Hills Bar Association’s amicus brief addresses the Gerbosi opinion.  Additionally, it addresses the right to send demand letters. The brief focuses on what makes an activity “unlawful as a matter of law” and what evidence is sufficient to “conclusively” show that the activity is unlawful as a matter of law.  It ultimately concludes that in denying Appellants’ anti-SLAPP motion, the trial court misapplied the holdings in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) and Gerbosi, by concluding that the Singer demand letter was illegal as a matter of law.

Survivors Network of those Abused by Priests

Written by attorney David Cook of Cook Collection Attorneys.

The Survivors Network of those Abused by Priests (SNAP) is a self-help group that supports people who have been victimized by clergy, and helps them try to pick up the pieces of their lives, heal and move forward.  SNAP believes that survivors of sexual assault need and deserve compensation for life long therapy and medical expenses, which should be paid without the risk of adverse litigation for bogus claims.  This is why SNAP supports survivors’ right to send a demand letter to a predator free of the risk that they will be sued for “extortion.”  Many sexual predators are highly aggressive individuals, and would lack any motivation to settle, absent a threat that their misconduct would become public.  The thrust of the amicus brief by SNAP is that the threat in a pre-litigation demand letter to reveal misconduct is not extortive if the misconduct itself is the act upon which the claim and ensuing lawsuit are based.

American Civil Liberties Union of Southern California

Written by attorney Peter Eliasberg of the ACLU Foundation of Southern California.

The American Civil Liberties Union of Southern California (ACLU/SC) is one of three California affiliates of the national ACLU, which is dedicated to protecting the civil rights and civil liberties guaranteed by the Bill of Rights of the United States.  Their brief agrees with both appellants and amicus ASCDC that the trial court erred in relying on Gerbosi.  The brief also noted that the trial court’s decision is inconsistent with both Flatley and the long line of cases holding that courts should not address in the first prong of the anti-SLAPP inquiry claims that expressive activity that appears to fall within the ambit of the anti-SLAPP statute is, in fact, illegal or otherwise unprotected.

Hinshaw & Culbertson LLP

Written by attorneys Ronald E. Mallen and Cassidy E. Chivers of Hinshaw & Culbertson, LLP.

Hinshaw & Culbertson LLP represents lawyers in legal malpractice cases, and, frequently, in cases brought by adversaries of the lawyers’ clients for litigation-related conduct, as is the situation here.  Their brief argues that lawyers, who operate in an adversarial system, must have the ability, and freedom from unwarranted threat, to advocate on behalf of their clients consistent with their ethical obligation of zealous representation.  As prelitigation settlement demands are a vital tool of this advocacy, the brief argues that the “illegality exception” to the anti-SLAPP law created by the California Supreme Court in Flatley v. Mauro, (2006) 39 Cal.4th 299, has been construed narrowly to preclude a chilling effect on a lawyer’s ability to effectively and zealously represent a client. In the context of the illegality exception, they argue that there should be a bright-line rule limited to truly criminal conduct, which is different than the situation underlying the trial court’s ruling below.

This level of amicus support is not often seen for cases before the California Court of Appeal, and demonstrates the broad consensus that the trial court erred in its decision.  CASP hopes that the Court of Appeal agrees and reverses the lower court’s decision.

Oral argument in this case has been scheduled for May 16, 2013.  The appellants’ primary opening brief and reply brief can be read here: Appellants’ Opening Brief, Appellants’ Reply Brief