Today we visit one of our crazier cases, which I will call the case of, “You Got Me in Trouble With the Law, so Now You Have to Pay.”
To preserve our client’s privacy, let’s make the plaintiff a plastic surgeon, who does Botox parties on the side. That’s pretty analogous to the real facts.
Trouble is, the doctor couldn’t be bothered to actually attend the parties, so he trained some women to run them and to do the actual Botox injections. It should come as no surprise that is against the law. However, as you can imagine, if you throw a party with wine, cheese, and Botox, some attendees won’t care who is giving the shots.
You picked the wrong person to mess with.
Our client’s wife went to one of these parties, and had a bad result with her injections. Later, our client heard from someone in his office that they were thinking about having a Botox party. Seeing an opportunity, our client encouraged the co-worker to contact the plastic surgeon who had thrown the party that messed up his wife’s face, to see if he wanted to arrange the party. His plan was to bust the unlicensed women, and hence the doctor, when they showed up to do the injections. The doctor took the bait.
Our client set up quite the little sting operation, arranging for Medical Board investigators to be present. Sure enough, the women showed up to do injections without the doctor present. Ultimately, the doctor lost his license, and when people heard that the women doing the injections were not licensed, some former party-goers sued the doctor.
Incredibly (just from the pure nerve of it), in the action by the party goers against the doctor, the doctor cross-complained against our client. “What for?” you ask. Good question, and thanks for engaging.
The crazy legal theory.
Follow this, because the doctor’s reasoning is not easy to fathom. The doctor’s attorneys alleged that the Botox party for which he was hired was a scam, because it really wasn’t the intention that the people attending would get injections. Rather, the party was planned solely for the purpose of “setting up” the doctor. The doctor therefore sued for fraud, seeking all the damages he suffered as a result of the loss of his license, and for the damages he would have to pay to the party-goers.
In other words, alleged the doctor, if the party had not been arranged, he would never have been caught doing something illegal, and would not have lost his license or been sued. He wanted our client to pay for all the damages he suffered as a result of his own wrongdoing.
At that time, our client was represented by other counsel, but the client had done a great job educating himself on anti-SLAPP motions. His attorney had not pursued an anti-SLAPP motion, but the client felt it was appropriate, and hired us to take over the case.
California provides protection for certain speech. If the speech is absolutely protected, then it cannot be the basis for any sort of claim for damages. One form of speech that is absolutely protected is a report to the police. If you think about it, the reason is clear.
Picture that you see someone breaking into your house, call the police, and the burglar is arrested. What is a poor burglar to do? Well, if your report to the police was not protected, then he could, for example, sue you for defamation, claiming that you lied about him breaking into your house, and harmed his reputation (to the point that the police dragged him away in handcuffs). That would be a heck of a way to harass a victim. Indeed, the victim might not want to spend thousands of dollars fighting against a defamation claim, and might be persuaded to drop the charges if the burglar drops his legal action.
That is why certain speech is protected. To this some will respond, “So you’re saying I can lie to the police and get away with it?” No, because filing a false police report is a crime. You can be arrested for lying to the police, you just can’t be sued.
So back to our case. We agreed that this case screamed for an anti-SLAPP motion. A report to a government agency is protected, and the fact that our client allegedly set up a sting doesn’t make it any less of a protected activity.
But there was a big problem. The case had been going on for 18 months. Our client wasn’t named in the cross-complaint until well into the action, but he was still far beyond the 60 day limit for bringing an anti-SLAPP motion.
We filed an ex parte application for leave to file a late anti-SLAPP motion, and it must have been pretty persuasive because we almost immediately received a call from the court clerk stating that the application had been granted, and that no oral argument would be necessary. The doctor’s attorneys were not even given an opportunity to oppose.
We filed our anti-SLAPP motion, which was granted by the court. Bing, bang, boom, our client was out of the action.