The Stretching of California’s Anti-SLAPP Statute: Are Appellate Tribunals Becoming Triers of Fact?

Posted in: Appellate Review by Steven Vartabedian on

In Tamkin v. CBS Broadcasting, Inc.(filed March 1, 2011) 2011 DJDAR 3285, CBS writer Sarah Goldfinger had offered to purchase a home from sellers represented by real estate agents Scott and Melinda Tamkin, husband and wife. Goldfinger cancelled the transactions based on the expense it would take to remedy problems revealed by a home inspection. Normally, these parties would simply go their separate ways. But Goldfinger had the bright idea to write an episode for the CBS series CSI using the names Scott and Melinda Tamkin for real estate professionals where Scott becomes a suspect in the killing of his wife Melinda. Preliminary drafts were utilized to break down the roles with synopses that included the “Scott Tamkin” character as a “hard-drinking extensive bondage/porn-watching” mortgage broker, and the “Melinda Tamkin” character as an attractive, athletic real estate agent who dies under suspicious circumstances, possibly as a result of her husbands conduct “during kinky sex.” These casting descriptions were sent to talent representatives in Los Angeles and somehow leaked to the internet. The episode was telecast on February 12, 2009 with the exception the last name “Tucker” was substituted for “Tamkin.”

About three months later, the real-life Tamkins filed suit for defamation and false-light invasion of privacy. Defendants CBS and Goldfinger filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion pursuant to California Civil Code section 425.16, which was denied in the trial court. The Court of Appeal, Second Appellate District, Division Four, reversed instructing that the anti-SLAPP motion be granted, meaning plaintiffs’ case will be dismissed.

As the appellate court notes, this statute provides “a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” The defendants must show their conduct arises from protected activities. If they meet this burden then the action will be dismissed unless plaintiffs demonstrate there is a probability they will prevail on their claims. Regarding defendants’ burden, the focus is on the specific nature of the asserted protected conduct, not just some abstract generality. (See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337.) If the conduct is protected, it must be in the furtherance of a right to free speech (see Lieberman v. KCOP Television, Inc (2003) 110 Cal.App 4th 156) and connected with the public interest (see Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027). Here, the appellate court found (1) the protected activity to be the use of the Tamkins’ names as a “real estate couple” in the published casting synopses, (2) the creation of a television show as the free speech right which this conduct acted to further, and (3) this CSI episode to be a matter of public interest. Having so found, the court then finds that plaintiffs did not carry its burden of demonstrating a probability they would prevail on any of their claims.

My focus is on the defendant’s burden here. Is there any kind of broadcast activity that would not qualify under this court’s loose analysis? I submit that the application of this prong of this statute, intended to protect the valid exercise of constitutional rights, is being stretched beyond the statute’s intended purpose. Not only does this application of the statute’s first prong force the plaintiff to prove probability of success at trial, it gives the appellate court the ability to early-on substitute its judgment of the facts in the place of a jury. And for succeeding on the motion, defendants get statutory attorneys fees to boot. It could well be that defendants would ultimately prevail on summary judgment or at trial, but let’s let that procedure play itself out rather than tenuously so find on the basis of protecting against the chilling effect on a television show’s supposed constitutional right to carelessly embarrass presumably law-abiding citizens and besmirch their good names. It seems like the protective intent of the statute has been turned up on its head. There will be more about the role of the appellate courts in my next posting.

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