Defendants in entertainment industry cases often invoke California’s “anti-SLAPP” statute, Calif. Civ. Code §425.16, which is meant to bar lawsuits filed to muffle free speech activities or a legal right to petition. This summer, some noteworthy court decisions have come out of California that involved anti-SLAPP motions filed by attorneys who are defendants themselves in entertainment litigations.
Boladian v. Clinton, B267950, in California state court, arose out of a lawsuit filed by musician George Clinton in 2011 in the U.S. District Court for the Central District of California against Westbound Records, its principal Armen Boladian and other music industry parties. In 2013, Stroock & Strock & Lavan and then-firm member Daniel Rozansky were substituted in as Clinton’s lawyers in the federal case due to health issues hindering Larry H. Clough, the attorney who originally filed Clinton’s lawsuit. Stroock amended Clinton’s lawsuit to delete the sound recordings claim against Boladian. The district court dismissed the case with prejudice.
In 2015, Boladian filed a lawsuit in Los Angeles Superior Court against Clinton and Clinton’s lawyers, including a malicious prosecution claim. Not long before Stroock had become Clinton’s counsel in Clinton’s federal lawsuit, Boladian’s counsel Paul Duvall sent Rozansky a letter with accompanying documents challenging the viability of Clinton’s claims.
But then, according to Boladian’s complaint: “Rozansky acted unreasonably in filing the Amended Complaint knowing that Clinton’s claims lacked merit. Upon information and belief, the Amended Complaint was filed so Clinton could appear on [a] news broadcast and claim that he had a lawsuit pending in which he was fighting for millions of dollars [Boladian] allegedly owed him. As an attorney, Rozansky violated his oath of professional responsibility by filing a claim he knew to be baseless. Rozansky’s position as a partner at Stroock imputes his liability for wrongdoing to Stroock, and therefore both parties are liable to [Boladian] for malicious prosecution.”
The Stroock firm raised an anti-SLAPP motion over Boladian’s malicious prosecution claim. Stroock argued Boladian couldn’t prove the law firm lacked probable cause or had filed the amended complaint with malice. The Los Angeles Superior Court granted the law firm’s motion.
Ruling on Boladian’s appeal, the California Court of Appeal, Second Appellate District, first found that Boladian’s malicious prosecution claim against Stroock grew out of the firm’s protected activity of serving as Clinton’s litigation counsel. Looking then at whether Boladian had shown he was likely to prevail on his malicious prosecution claim, the court of appeal observed about whether Stroock had acted with malice: “Boladian contends Stroock’s motive in prosecuting the underlying action was to assist Clinton in publicly humiliating Boladian. Boladian emphasizes Clinton appeared in a news story on Detroit television on the same day that Stroock filed the first amended complaint, and argues there would have been no news broadcast had Stroock not filed the amended pleading.” But the only evidence for this that Boladian provided was his own declaration. The court of appeal, quoting the trial court, concluded: “Boladian’s beliefs are irrelevant, and this statement is inadmissible speculation.”
Affirming the grant of Stroock’s anti-SLAPP motion, the court of appeal went on to note about Duvall’s correspondence to Rozansky: “As a matter of law, possible negligence in conducting factual research is not enough on its own to show malice. … Moreover, Boladian’s discussion in the opening brief that malice can be implied from Stroock’s alleged failure to investigate is not supported by a single citation to any supporting evidence.”
A different case involved the issue of who constitutes a prevailing party for purposes of an attorney fee award for filing the anti-SLAPP motion. Musician Carlos Santana had hired visual artist/graphic designer Eric Gottesman (a/k/a GMAN) to create works for the “Santana” brand. Gottesman claimed he retained the copyright in the works and gave Santana limited copying and distribution rights. Gottesman ended up suing Santana and numerous other defendants in the U.S. District Court for the Southern District of California by alleging they exceeded the scope of the licenses. Gottesman v. Santana, 16-CV-2902.
After attorneys Daniel J. Schacht and the Donahue Fitzgerald law firm, who were defendants in Gottesman’s case, filed an anti-SLAPP motion, Gottesman dropped them from his lawsuit. The attorneys argued Gottesman had done so “to avoid an adverse ruling on an anti-SLAPP motion by dismissing the moving party.”
Southern District of California Judge Janis L. Sammartino noted: “Procedurally, Plaintiff is correct that the anti-SLAPP motion is moot given his voluntary dismissal of Attorney Defendants.” But Judge Sammartino said she could nevertheless decide whether Schacht and Donahue Fitzgerald were “prevailing defendants” regarding their request for attorney fees and costs under the anti-SLAPP statute. On this, the district judge disagreed with Gottesman that the federal Copyright Act preempted California’s state anti-SLAPP provisions.
District Judge Sammartino also disagreed with Gottesman that related federal trademark applications the moving attorneys had filed with the U.S. Patent and Trademark Office (USPTO) didn’t qualify as “protected” anti-SLAPP “activity.” Instead, she emphasized: “The law is clear that the act of filing a trademark application with the … USPTO … is protected by the anti-SLAPP statute as a writing made before an executive or other official proceeding authorized by law.” The district judge acknowledged Gottesman “argues that Attorney Defendants failed to conduct an independent verification of the copyright status of Plaintiff’s artwork prior to including it in the trademark application[s],” but concluded that “Attorney Defendants’ filing of trademark registrations remains protected activity, notwithstanding the present dispute between the parties.”
Before ruling on whether to award anti-SLAPP attorney fees and costs to Schacht and Donahue Fitzgerald, Judge Sammartino asked the attorneys to provide further documentation of the legal work done on their anti-SLAPP motion. Nevertheless, taken together these cases provide some clarity on a range of notable issues that can arise when anti-SLAPP motions are filed by entertainment counsel who are case defendants.
***** Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado’s Denver Campus. He is author of the book Baby You’re a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.