As mentioned in Little Stupid Civil Case: Part 1: How Far 1 Company Will Go to Destroy 2 Lives, the plaintiff home building company sued the defendants using eight different aliases and “aka” (which means ‘also known as’). Usually a person is sued with an “aka” attached if they are known as a different person (for example, a divorced woman going back to using her maiden name) or for doing business under a different name. 

Suppose a book author writes under a known alias and if it’s a defamation case against the author, for example, you may wish to include the alias under which that person writes. But it’s usually only included if you don’t know a person’s legal name.  In the case of these defendants, the plaintiff knew their legal names because it had actually done business with them using their legal names. It signed a legally binding contract with them.

So what was the motivation to alter their names for the lawsuit?  Well, the allegations against them were that they were using aliases to disparage the company on the Internet. The company felt harassed so what better way to get back at them than to do the same, disparage them, and portray them as criminals to the eyes of the court and public. Every court-filed document contains the caption (cover) page showing all those aliases as if they were master criminals on the run.

The first big mistake the defendants made was in responding to the lawsuit without contesting the inappropriate names. But as someone told them even if they had done that, the company would simply have had to have changed the complaint and it would still go on. So be it. They still should have contested it on that basis because it was wrong, legally wrong. 

The second big mistake they made was in making a cross-complaint based on what they believed was abuse of process and libel per se for the plaintiff using all those fake names. The defendants believed they had a legal right to sue the company for disparagement. They were mistaken. They were hit with what is called an anti-SLAPP motion and in California, it’s based on California Code of Civil Procedure section 425.16 which perceived their cross-complaint as a SLAPP, a strategic lawsuit against public participation.  Many other states have similar statutes. Make sure you don’t fall prey to the dreaded anti-SLAPP motion if you decide to sue someone or some company. The use of the statute has become very prevalent.

The Code in California

Here’s how the statute reads in CCP § 425.16. “The Legislature finds and declares that there has been 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 Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.”  It continues, ”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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The law was enacted by the state Legislature almost twenty years ago and amendments have been made since that time to improve the law and provide stronger protection from meritless lawsuits to anyone who is SLAPPed in California. A SLAPP lawsuit, therefore, is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

The law’s original intent was actually to protect average citizens from being harassed and sued by companies when they exercised their free speech and petition rights against those companies.

If you read up on the law, you will see some of the following statements: “The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.”  Within this context, the defendants became the “SLAPP plaintiff” because they were the ones who filed the cross and the home building company became the “SLAPP defendant”.

The defendants filed their cross-complaint because they believed 1) they had a right to sue and, 2) that the company was now disparaging them.  Knowing this and reading the previous paragraph, can you see how absolutely ludicrous it was for them to be hit with an anti-SLAPP motion?  Nothing applies; they weren’t trying to intimidate anyone or create mounting legal costs for the company.  They were trying to exercise their own right to “petition for the redress of grievances.”

But, the argument against them was that by suing the company, they were violating the company’s free speech rights to petition the courts (i.e. sue the defendants) and, in the process, use whatever fake names they dreamed up to sue them under. The court therefore ruled in the company’s favor and the defendants’ cross-complaint was instantly dismissed.

Since one of the clauses in that statute pertains to the payment of “mandatory” attorney fees for the loser in this scenario, the defendants were hit with over $10,000 in fees. Defendants are representing themselves because they can’t afford an attorney. If they can’t afford an attorney, they can’t afford to pay that ridiculous amount in fees. 

The moral of the story is, don’t think that you can just easily file a cross complaint. Complaints are subject to different responses and anything other than a straight answer could put you in hot water to pay attorneys fees and costs.  The anti-SLAPP motion is just one perfect example. Beware.

Article by Ginger Marin. To learn about her acting, visit Ginger Marin’s IMDB page.

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