Wednesday, January 12, 2011
C.A. Upholds Ruling Allowing Libel Action by Bay Area Sikh
Panel Calls Anti-SLAPP Motion Abusive, Questions Wisdom of Absolute Right to Appeal Denial
By KENNETH OFGANG, Staff Writer
A court interpreter who helped found a Sikh temple in the Bay Area made out a prima facie case of libel against the editor and publisher of a newspaper in which he was accused of having taken money from the temple and other misconduct, the First District Court of Appeal ruled yesterday.
Div. Two affirmed an Alameda Superior Court judge’s order denying a motion by the editor and publisher of the Punjab Times to strike Hardev Singh Grewal’s complaint under the anti-SLAPP statute. Justice James Richman, writing for the court, said it was unnecessary to determine whether the articles dealt with a public issue, because defendants “essentially conceded” that Grewal met his evidentiary burden under the statute.
“And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost—and prejudicial delay,” the justice wrote. “It is time for plaintiff’s case to be heard on the merits, Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal.”
The suit, filed in 2006, is one of several that have been brought as a result of disputes between factions that have sought to control the San Francisco Bay Area Temple in Fremont. Grewal has been a central figure in one of the factions, although the Court of Appeal opinion pointed out he has not been involved in management of the temple in recent years.
In an amended complaint for libel and slander, Grewal sued A.B. Publication, Inc., owner of the Punjab Times, and editor Amolak Singh Jammu, as well as several of his antagonists within the temple. Four causes of action named the newspaper defendants, who filed an anti-SLAPP motion days before the case was set for trial.
Judge Jo-Lynn Q. Lee denied the motion.
She ruled that three of the articles concerned private disputes within the temple and were thus outside the scope of the anti-SLAPP statute, and that Grewal demonstrated a likelihood of prevailing on his claim concerning the fourth article.
That article accused Grewal of calling the temple school a “madrassa,” suggesting it was training terrorists. Grewal filed a declaration denying he had ever made any such statement.
Richman, writing for the Court of Appeal, noted that the defendants’ motion and supporting evidence focused solely on whether Grewal was a public figure and whether the articles discussed public issues, offering no refutation of his factual allegations. Because the defendants left the factual claims unrefuted, the justice said, the plaintiff met Code of Civil Procedure Sec. 425.16’s requirement that he demonstrate he would probably prevail on those claims.
The defendants’ 72-page opening brief, and 66-page reply brief, “utterly fail to come to grips with the issue here,” the justice said.
Richman went on to note that there has been a proliferation of anti-SLAPP motions over the years, with the number rising from 55 in 1999 to 327 in 2000 to more than 500 per year between 2002 and 2009, according to Judicial Council statistics.
The process, he said, “is being misused—and abused” in many ways, he said, including the bringing of such motions in cases that “simply do not ‘arise from’ protected activity,” as well as a “more subtle” form of abuse where the defendant brings the motion despite knowing that the defendant will be able to meet the evidentiary burden.
The plaintiff in such case, the jurist noted, will be forced to expend thousands of dollars litigating the motion, while the case is stayed. And particularly so in Grewal’s case, in which the court had earlier denied an anti-SLAPP motion by the other defendants, whose arguments were stronger than that of the newspaper, Richman said.
“We would say that this filing alone would be an abuse,” the justice said. “And certainly when followed by the abuse coup de grâce—the appeal.”
Given the high potential for abuse of the defendant’s right of appeal—and the fact that appeals typically take 19 to 26 months to resolve, according to statistics—the jurist suggested, the Legislature should consider repealing that aspect of the statute. “In those relatively rare circumstances where a trial court has clearly erred in denying a meritorious anti-SLAPP motion, relief might be obtained by a writ, as it has been in similar circumstances where an appeal does not lie,” he pointed out.
The case is Grewal v. Jammu, A126239.
Copyright 2011, Metropolitan News Company