Metropolitan News-Enterprise


Wednesday, October 31, 2007


Page 1


C.A. Upholds Denial of Anti-SLAPPMotion in Suit by Law Firm

Statutue Does Not Protect ‘Private Campaign of Vilification,’ Fourth District Panel Rules


By STEVEN M. ELLIS, Staff Writer


Statements posted to a website that criticize an attorney’s professional conduct do not involve a matter of public interest protected under the state’s anti-SLAPP statute, the Fourth District Court of Appeal has ruled.

In an unpublished opinion, Div. Three held unanimously yesterday that the statute does not bar the law firm of Peters & Freedman LLP from pursuing a defamation claim against Elizabeth and Arnold A. McMahon for posting such statements, and affirmed the decision of Orange Superior Court Judge Gregory Munoz to deny the McMahons’ anti-SLAPP motion.

Writing for the court, Justice Raymond J. Ikola said:

“Statements made in ‘a private campaign of vilification’ — such as this — do not interest the public and are not protected.”

Libel Suit

The firm sued the McMahons and two others in December of 2005, accusing them of libel, libel per se, and invasion of privacy for posting statements to a website accusing the firm and its attorneys of committing illegal and unprofessional conduct while representing homeowners associations in various lawsuits.  The firm asserted all three causes of action for each of 21 statements posted on the website, as well as one addition cause of action styled, “Permanent Injunction.”

The McMahons had posted the statements on a website they founded and operated called the American Homeowners Resource Council, which describes itself as a “public interest interactive website for homeowners” to “help citizens in homeowner associations… take back their homes from the two generations of crooked lawyers, politicians, judges and vendors who have stolen them.”

The McMahons filed a motion under the anti-SLAPP statute to strike the firm’s complaint, arguing that it arose from the exercise of their constitutional rights to freedom of speech and to petition for the redress of grievances. 

The statute provides a mechanism for quickly identifying and eliminating strategic lawsuits against public participation that are brought to chill the valid exercise of these rights.

Motion Denied

Munoz denied the motion, finding impliedly that the McMahons showed that the statements arose from activity protected by the anti-SLAPP statute, but expressly that the firm showed a probability of prevailing on its causes of action.

On appeal, Ikola said that in order for the McMahons to meet their initial burden of establishing that the challenged causes of action were based on protected activity, they had to show that the statements fit within one of the four categories spelled out in the anti-SLAPP statute.  If the defendants met this standard, he said, the burden would then shift to the firm to establish a probability that it would prevail on its claim.

Although the McMahons conceded that the statements were not made in a governmental proceeding or in connection with an issue being reviewed by a governmental body, they contended that the statute applied because the statements had been made in a public forum in connection with an issue of public interest, and in furtherance of the constitutional right of free speech in connection with an issue of public interest.

However, despite assuming that the website was a “place open to the public or a public forum,” Ikola concluded that the McMahons could not meet their initial burden because they had failed to show that the statements concerned issues of public interest under the test set forth by the Court of Appeal in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.

He said that the firm was not an entity in the public eye, despite the McMahons’ argument that it represented more than 500 associations with tens of thousands of members, lobbied on behalf of homeowner associations, and had appeared on television.

“[A] private law firm does not inject itself into the public eye merely by having many clients or making isolated media appearances,” he said.

Claim Unsupported

He also wrote that the McMahons failed to support their claim that the statements had involved conduct that could affect large numbers of people beyond the direct participants. 

“[T]he relevant focus here,” he said, “is on ‘the statement or activity precipitating the claim,’ not the conduct precipitating the statement that precipitates the claim… The McMahons fail to explain how the posted criticisms of the law firm could affect anyone other than the law firm, except by appealing to the public’s general interest in attorneys and court proceedings.”

 Noting that this argument spilled into the last of the three Mann examples, Ikola similarly rejected the McMahons’ claim that the statement involved a topic of widespread public interest.

Writing that the McMahons had failed to cite any evidence showing that the firm’s conduct had generated any such interest or public scrutiny beyond their website, Ikola said that the statements appeared instead to be matters that concerned only the McMahons and a relatively small, specific audience who felt wronged by the firm and wanted to share their grievances among themselves.

Citing a previous decision by the court, he said:

“[T]he focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy’”

Ikola was joined in his opinion by Presiding Justice David G. Sills and Justice William F. Rylaarsdam.

Attorney Michael G. Kim of Peters & Freedman LLP, who represented the law firm in its appeal, did not return a call seeking comment.

However, Philip A. Putman, counsel for Elizabeth McMahon, said he was very disappointed with the court’s decision.

“It is an attack on basic freedoms,” he said.

Reiterating his client’s position that the law firm’s representation of tens of thousands of homeowners association members made it a subject of public interest, Putman called the ruling a “dangerous precedent” and indicated that his client would likely appeal.

The case is Peters & Freedman LLP v. McMahon, G037871.


Copyright 2007, Metropolitan News Company