Monday, September 9, 2013
C.A. Approves Use of Anti-SLAPP Motion to Pare Causes of Action
Says It Would Make No Sense to Strike All or Nothing Where Some Conduct Alleged Is Protected, Some Not
By a MetNews Staff Writer
A trial court, in ruling on an anti-SLAPP motion, may excise portions of a cause of action, while leaving others undisturbed, the Court of Appeal for this district ruled Friday
Presiding Justice Norman Epstein of this district’s Div. Four wrote the opinion. It affirms an action by Los Angeles Superior Court Judge Michael Johnson.
The ruling came in response to an appeal by a Jessica Chang, who sued a former co-worker, Howard Cho, for sexual assault and harassment, and was then hit by his cross-complaint for defamation and intentional infliction of emotional distress. She entreated the appeals court to order that the cross-complaint be stricken in its entirety.
The cross-complaint was comprised of two causes of action, each predicated on the alleged falsity of Chang’s allegations, uttered to the employer; to the federal United States Equal Employment Opportunity Commission and the state Department of Fair Employment; and to co-workers. Johnson ruled that complaints to co-workers were not protected activity, for purposes of the anti-SLAPP statute.
No ‘Public Interest’
Johnson said in his minute order:
“Chang argues that her comments to co-workers related to matters of ‘public interest,’ but that is without merit. A public interest involves more than mere curiosity or private information communicated to a small number of people; it concerns communications to a substantial number of people and some connection with the public interest rather than a private controversy.”
Johnson left the two paragraphs relating to Chang’s statements to co-workers intact, while snipping out three others. The judge noted that a party prevailing on an anti-SLAPP motion is normally entitled to an award of attorney fees, but said:
“While Chang’s motion has been granted in part, the ruling has produced nothing of consequence. Cho is still entitled to pursue his causes of action for defamation and [intentional infliction of emotional distress], and the evidence to be presented at trial is largely the same. Chang should have been aware that Cho’s allegations about private comments were viable, and she should have addressed the other allegations in a more focused and less burdensome manner (such as a traditional motion to strike or a motion in limine). Chang’s request for an award of fees and costs is denied.”
Epstein affirmed the partial granting of the anti-SLAPP motion in a published portion of his opinion and approved the denial of attorney fees in an unpublished segment.
Wrestled With Statute
“Appellate courts have wrestled with the application of the anti-SLAPP law where, as in this case, a single cause of action includes multiple claims, some protected by that law and some not,” Epstein wrote.
He said Johnson took the right approach, explaining:
“It would make little sense if the anti-SLAPP law could be defeated by a pleading, such as the one in this case, in which several claims are combined into a single cause of action, some alleging protected activity and some not. Striking the entire cause of action would plainly be inconsistent with the purposes of the statute. Striking the claims that invoke protected activity but allowing those alleging nonprotected activity to remain, would defeat none of them. Doing so also is consonant with the historic office of a motion to strike: ‘to reach certain kinds of defects in a pleading that are not subject to demurrer.’…
“That is what the trial court did in this case. Its ruling makes sense, and renders justice to both sides. We believe it was correct.”
The case is Cho v. Chang, B239719.
Henry M. Lee and Robert Myong of the Henry M. Lee Law Corporation represented the appellant, Jessica Chang. Linda Miller Savitt, Linda B. Hurevitz, and Christine T. Hoeffner of Ballard Rosenberg Golper & Savitt were attorneys for respondent Howard Cho.
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