Anti-SLAPP Statute Does Not Protect Anti-Attorney Protest

Monday, March 10, 2008

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Anti-SLAPP Statute Does Not Protect Anti-Attorney Protest—C.A.

By STEVEN M. ELLIS, Staff Writer

The state’s Anti-SLAPP law does not protect a man who parked a pickup truck bearing a sign criticizing his former lawyer outside the lawyer’s church on Sunday morning from liability for defamation, the Third District Court of Appeal has ruled.

Ruling in an unpublished opinion released Thursday that Jeffrey Isbell’s criticisms of the way Roseville attorney Frederick W. Penney handled a lawsuit over the death of Isbell’s daughter—which Isbell said were intended to induce Penney to meet with him—were a matter of private concern rather than public interest, the court affirmed the decision of Placer Superior Court Judge James Garbolino to deny Isbell’s motion to strike Penney’s complaint for defamation.

Penney represented Isbell in a wrongful death action following the 2002 death of Kristiana Isbell when the vehicle in which she was a passenger left the road and struck a tree.

According to William M. Gwire, whose firm Gwire Law Office currently represents Isbell, the lawsuit was settled in May of 2004 with a recovery for Isbell from the insurer of the driver, Stephanie Bellotti, and a “token payment” from Placer County. Penney, who represented Isbell on a contingency basis, then subtracted his fees and costs from the settlement amount, Gwire said.

In July of 2005, Isbell wrote a letter to Penney in which he stated a realization that he and his wife “were victimized not only by [Kristiana’s] death, but by those who make their livings dealing with such tragedies.” Stating that he “hope[d] to redress some of those wrongs,” Isbell complained about the adequacy of the settlement amount and requested the files in his daughter’s cause so that he could “make an informed decision as to the proper course of action to take.”

Responding to Isbell’s concerns with surprise, Penney briefly described his investigation of the case and the limited potential for recovery against the county and Bellotti’s family. Penney reminded Isbell that he had agreed that settling the case was better than continuing to run up costs and that another personal injury lawyer had agreed with the assessment, but nevertheless agreed to send a copy of the file.

Isbell wrote a second letter at the end of that year, explaining what his expectations of Penney’s representation had been, describing the stress and financial difficulties his family had experienced, and informing Penney of his conclusion that Penney had only looked after his own interests.

Isbell wrote:

“[Y]our family profited from my daughter’s killing because you paid yourself with money that you did not recover. You used our guaranteed payout from the Belotti’s insurance to go on a half-hearted search for a pot of gold, and when it became apparent you would have to work harder for it you decided to move on to another case.”

He contended Penney did not sufficiently investigate the case and that his family was “continuing to pay dearly for your lack of due diligence,” and concluded the letter by requesting a face to face meeting with Penney.

Penney did not reply to Isbell’s second letter, and on Sunday April 16, 2006, Isbell parked a pickup truck outside Penney’s church bearing a sign that read:

“FRED PENNEY KRISTIANA ISBELL’S FAMILY IS $ 150K IN DEBT WHILE YOU PROFITED FROM HER KILLING! WHOSE BEST INTERESTS WERE REALLY SERVED? YOU’VE IGNORED OUR REQUESTS TO DISCUSS THIS WITH YOU. WHY? IT’S NOT TOO LATE TO FIX THIS FRED.”

Four days later, Penney sued Isbell for defamation and intentional infliction of emotional distress and filed a request for an order stopping harassment.

Isbell opposed the request for the restraining order, asserting that the sign was an expression of his First Amendment rights, and filed a motion to strike the defamation complaint.

The trial court issued a ruling granting Penney’s request for an injunction against harassment to be effective up until December 31, 2006, concluding that there had been a course of conduct constituting harassment.

Concluding that the sign “was clearly harassing, and was not privileged,” Garbolino also found the statements on the sign were “unequivocally designed to injure the reputation of Mr. Penney as an attorney, as well as to bring into question his ethics and professional loyalty to his client,” and that they appeared to “libelous per se.”

He subsequently denied Isbell’s anti-SLAPP motion, concluding that Isbell had failed to show his letters and sign were protected speech or conduct because he had not shown his sign concerned an issue of public interest.

On appeal, the Court of Appeal, in an opinion by Justice Tani Cantil Sakauye, ruled that that Isbell’s challenge to the injunction was moot because the injunction had expired, and ruled that the trial court had properly denied Isbell’s motion.

She wrote:

“[S]tatements involving purely personal controversies unconnected to any larger discussion of general societal or consumer issues are not statements involving issues of public interest…

“Contrary to Isbell’s claim on appeal, the statements did not encourage the public discussion of attorney ethics or malpractice. The sign did not even identify Penney as an attorney and made no attempt to connect its allegations of improper conduct by Penney to any broader issue of attorney misconduct, ethics or compensation.

“There was no evidence the sign generated any public discussion of attorney practices. The sign did not convey any consumer information or advice regarding the employment of attorneys.

“The purpose of the sign was simply, as Isbell admitted in his declaration submitted with his special motion to strike, to force a meeting with Penney. The focus of Isbell’s statements was not on any public controversy or discussion, but on his purely personal controversy with Penney.

“Just because such private controversy involved an attorney did not make the statements a matter of public interest.”

Justices Coleman Blease and M. Kathleen Butz joined Cantil Sakauye in her opinion

Penney’s counsel, Ronald J. Tocchini had not reviewed the opinion when contacted by the MetNews.

However, Gwire said that the decision was a disappointment to his client, and that they would be considering whether to appeal.

He said that he understood the court’s rationale, but maintained that the issue of lawyer ethics and contingency fees, as well as representation of individuals, were matters of public concern.

He also said that the court’s opinion failed to take into account Penney’s advertisements of his services in the community as a major personal injury lawyer.

The case is Penney v. Isbell, C053824