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Defamation Suit Defeated With “Slam Dunk” Anti-SLAPP Defense

Per a blog post on the Tyson Mendes website and based on public records, A defamation SLAPP suit was defeated via an Anti-SLAPP defense and affirmed in the appellate court on December 19, 2016.

California’s Strategic Lawsuit Against Public Participation (“SLAPP”) statute was enacted because the Legislature found there was a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” The Anti-SLAPP statute – codified in California Code of Civil Procedure section 425.16 – allows a defendant to gain early dismissal of the causes of action that are designed primarily to chill the exercise of First Amendment rights. Los Angeles Superior Court Judge Richard E. Rico recently granted a motion to strike pursuant to the anti-SLAPP statute, opining that the case stood as a “slam dunk” example of the protections afforded by the statute.

In December of 2014, HealthSmart Pacific Inc. and its CEO, Michael D. Drobot, sued attorney Brian S. Kabateck and the law firms of Kabateck Brown Kellner LLP, Cotchett Pitre & McCarthy LLP, and Knox Ricksen LLP, seeking $60 million in damages for defamation. The lawsuit alleged that Mr. Kabateck and the law firms lied in television interviews, in which they stated the hospital had surgically implanted fake medical screws in patients’ spines and that the screws were not approved by the U.S. Food and Drug Administration. The statements made in the television interviews were related to a fraud and battery lawsuit brought by Mr. Kabateck and the three law firms on behalf of patient Mary Cavalieri, alleging the hospital had surgically implanted cheap, non-sterile screws in her spine.

Mr. Kabateck and the law firms filed a motion to strike HealthSmart’s and Drobot’s complaint, alleging the challenged statements were protected by the anti-SLAPP statute. The Anti-SLAPP statute is construed broadly, and provides that:

[A] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike…

Speech “in connection with a public issue” includes the following:

  1. Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; and
  2. Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.

California case law has provided a broad definition of “an issue of public interest.” “An issue of public interest within the meaning of section 425.16, is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the Anti-SLAPP statute – it is enough that it is one in which the public takes interest.” (Nygard Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.) “The definition of ‘public interest’ within the meaning of the Anti-SLAPP statute has been broadly construed to include…private conduct that impacts a broad segment of society…” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115.)

Here, the challenged speech related to Ms. Cavalieri’s lawsuit, which was one of multiple lawsuits filed arising out of a well-publicized controversy involving allegations concerning Mr. Drobot and the manufacture of counterfeit medical devices. Judge Rico found that the speech concerned an issue of public interest. In granting the motion to strike, Judge Rico stated, “That’s the whole purpose of the Anti-SLAPP statute – to protect people who are talking to reporters, particularly in connection with lawsuits. It’s pretty well a slam dunk.”

If Judge Rico’s ruling is any indication, California courts will continue to broadly construe “issue of public interest” in an effort to prevent defamation lawsuits involving public speech.

ABOUT THE AUTHOR: Morgan Van Buren is an associate at Tyson & Mendes LLP. He specializes in personal injury and high net worth insurance issues.


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