Defendants Awarded This Sum Despite Prevailing on Only 7 of 17 Causes of Action –
On April 15, the Vanguard ran a story that UC Davis is using anti-SLAPP legislation as a means to undermine civil rights protections for employees. One of the cases we were tracking to illustrate the problem is the case of former UC Davis Police Officer Calvin Chang, who alleges he was the victim of discrimination based on both his race and sexual orientation.
The Vanguard has learned in that in a tentative ruling, the judge has awarded UC Davis 20,756.25 dollars for attorney fees and 407.39 dollars in costs for a total of 21,163.64 dollars. We argued two weeks ago that this represented an abuse of anti-SLAPP legislation and the extension of SLAPP to include civil rights cases that it was never intended to cover.
She continued, “This is what happened in both lawsuits you reference: The court found that the claims by the plaintiffs were meritless, i.e. they fell within the definition of SLAPP. It is the responsibility of the plaintiffs’ attorneys to ensure that the lawsuit had minimal merit, and to advise their clients accordingly. Had that occurred in the lawsuits you reference, these situations would not have resulted.”
One might be inclined to agree with UC Davis, that if a case is frivolous it ought to be dismissed early on in the proceedings. The problem here is that, the use of anti-SLAPP legislation only removed some of the causes of action – in fact less than 40% of them.
Attorney Anthony Luti representing Mr. Chang in his opposition motion argued that “the amount of fees sought by the defendants is excessive and unreasonable.” He showed that the defendants were not successful defeating any of the FEHA claims, moreover they did not seek to strike several other claims including breach contract, covenant of good faith, and the POBR (Public Safety Officers Procedural Bill of Rights Act).
Writes Mr. Luti in his complaint, “These government defendants misrepresented facts, in order to procure Officer Chang’s resignation by fraud, concealed records and evidence, and further continued to retaliate by committing the unlawful personnel file violations. To compound these statutory violations, defendants also breached its settlement obligations in every respect to destroy Officer Chang’s career.”
In the tentative ruling, filed by Judge Timothy Yeung, he acknowledged this argument by the Plaintiff.
“Plaintiff first argues that no fees should be awarded because the motion to strike did not alter the nature of the lawsuit. According to Plaintiff, the “results of the motion were minimal and insignificant” because Defendants were not successful in striking the FEHA claims and in any event, they did not move to strike the breach of contract claims or the claim for violation of the Public Safety Officers Procedural Bill of Rights which according to him, are based on the same factual predicate as the claims stricken.”
However, he disagrees with Plaintiff here.
“The Court disagrees with Plaintiff that an outright denial of fees is warranted given Defendants successfully struck almost 40 percent of the claims in the complaint. Further, the Court disagrees that the case is essentially the same as it was before the motion to strike was granted. Indeed, Defendants have stricken the claims arising from the allegations regarding Defendants’ statements and actions during the course of settlement negotiations and background investigations. Defendants struck the fraud, conspiracy, negligent misrepresentation, interference with prospective economic advantage, negligent interference with prospective economic advantage, rescission, and libel. Defendants are no longer liable for these claims. Whether or not the remaining claims share the same causation and damages as the stricken claims, the Court does not find that the results of Defendants’ motion were minimal or insignificant such that fees should be denied. Defendants were unquestionably the prevailing party on the special motion to strike and are entitled to fees pursuant to CCP § 425.16(c). The only question is the amount.”
The question is why are the defendant’s entitled to anything here. If this truly were a frivolous suit as UC Davis alleges and they had struck the entire suit, there might be justification for it. But given that 60% of the claims remain, that is hard to justify.
As we discussed previously, this is a clear cut case of a law being applied where it was not intended.
The original intent of anti-SLAPP legislation was to end a practice conducted at that time mainly by business enterprises, property developers, and similar entities, private entities with a big stake in government action who would attempt to prevent citizens from speaking out against their businesses and projects at local city council and planning commission meetings.
According to Terry Francke, Excutive Director of Calaware, an organization that works to protect the right to free speech and open government, “Companies that had this practice took the view that this was just an intolerable interference with their business plan and so they would send these letters to people who stood up and spoke their mind and say that you are defaming us.”
“These letters,” he explained were strategic, “that’s where the word comes from, a strategic means of chilling speech, of shutting people. A very powerful and direct interference of first amendment rights.”
However, these lawsuits were also frivolous, they would not eventually stand up in court because people have the right to speak up at public meetings.
However for the people involved, the actions were ruinous. “It would be ruinously expensive for them to put on a lawyer defense so that when they “win” by getting the case dismissed, they have to sell their house.” He continued, “So it’s that practice, the combination of ruinously expensive litigation threats that became labeled as strategic lawsuits against public participation.”
Bill Lockyer, when he was in the legislature would end up carrying a bill that would provide an early shield against what seemed to be a SLAPP lawsuit. Explained Mr. Francke, “The essence is as soon as you file an action, against someone based on what they have said, either about an issue in court or another issue of genuine public interest in a public forum about anything, as soon as you do that, then the defendant who is being sued can file a motion and get the court to force the plaintiff to put on the strong points of the case to show what they have and to do that without further delay, in most cases without discovery.”
He added, “This SLAPP suit procedure has all but wiped out the defamation lawsuit.”
Davis Attorney Mary-Alice Coleman represents Professor George Branner in his still pending litigation against the university. He was hit with $30,000 in fees due to the use of anti-SLAPP legislation. Two weeks ago Ms. Coleman told the Vanguard that UC Davis is misusing the anti-SLAPP statute to thwart employees who claim civil rights violations.
She argued, “the purpose of the anti-SLAPP law is to protect an individual’s constitutional activities of free speech and to petition the government. The law is designed to prevent citizens from suffering the wrath of litigation abuse and bullying by big corporations and big government in connection with “public” issues.”
In contrast to the university’s view, Ms. Coleman argues, “This law has nothing to do with protecting persons who are performing their public duties.”
Terry Francke agrees with that sentiment. He argues that UC Davis “misses the point which is not that public agency should not have the ability to file anti-SLAPP motions or to use them to dispose of cases that are really not going to go anywhere or will be costly.”
Such use of the law would have a chilling effect on the ability of individuals to bring forward actions that challenge government actors conduct. “I think that if the only people who are entitled safely to bring an action challenging civil rights are the government’s actors themselves then that needs a lot less defense of civil rights than we’ve become accustomed to,” said Mr. Francke.
“You have to have private enforcement actions like civil rights violations, whistle blower violations, taxpayer challenges to government spending, and other areas where the government may intervene or take an enforcement role but by and large it’s left up to the injured parties or the taxpayers themselves to protect civic and civil rights in court,” he continued.
It seems rather amazing that a Judge would force the plaintiff to pay fees on a case in which 60% of it is going to trial, but that is exactly what has happened here. And he neither justifies it nor seems to even question it. He simply writes, “Defendants were unquestionably the prevailing party on the special motion to strike and are entitled to fees pursuant to CCP § 425.16(c).” They were the prevailing party, but given that the bulk of the suit has withstood the motion to strike, why assess fees at all?
It is clear that this law must be reformed. Again, it seems one thing if the suit was frivolous to give the prevailing side compensation for costs and fees, but it seems a different manner when the Judge admits 60% of the case is moving forward to have a law that allows that level of punitive measure to occur.
—David M. Greenwald reporting
Judges are supposed to apply the law to the letter. If you don’t like the law or how it is being applied, then the legislature is the only remedial agent to change a defective law or a law that has had unintended consequences. It sounds like the law in this case needs some legislative tweaking. DPD, if you feel strongly about this, or if Officer Chang’s attorney feels strongly about this issue, why not bring it to the attention of a sympathetic legislator? Perhaps Leland Yee?
I have done so. It’s not clear from the law that the judge is required to grant fees.
DMG: “I have done so. It’s not clear from the law that the judge is required to grant fees.”
Glad to hear you have referred this matter to the legislature. This is another area that citizens need to get involved with. Laws need constant tweaking, bc often by the time lawyers stretch and twist laws to their advantage in a case, unintended consequences are often the result.
Obviously the judge thought he had the right to grant fees under the law, and felt it was warranted in this case. Just as DA’s pile on charge after charge against a defendant to gain leverage for a plea deal, so do lawyers file multiple tort claims – with the idea in mind of gaining leverage for a settlement out of court. Unfortunately, the law has become more of an issue of leverage than justice at times.
He certainly had the right within that interpretation of the law – if it was struck down by SLAPP statutes – to assess fees on the plaintiff, the question is whether he had the discretion not to.