GetFugu, Inc. v. Patton Boggs LLP
220 Cal. App. 4th 141
| Cal. Ct. App. | 2013Background
- GetFugu, Freer, and Jenkins sued attorney defendants for defamation, malicious prosecution, and declaratory relief based on two publications by Oparil (press release Mar. 22, 2010) and a Tweet (Aug. 31, 2010) made in the context of a related RICO action.
- The RICO action had been filed by Davies and Warnock in 2010; it was dismissed against state-law claims, but GetFugu pursued ongoing claims in state court and secured a certificate of revivor to appeal merits.
- The attorney defendants moved to strike the complaint under CCP 425.16 (anti-SLAPP) on the grounds the defamation claim arose from protected activity in connection with pending or potential official proceedings.
- The trial court granted the anti-SLAPP motion as to defamation, ruling the press release and Tweet either privileged or nonactionable and that the press release’s gist could be true; it did not determine favorable termination for malicious prosecution.
- The appellate court reversed in part, holding GetFugu and Freer could prevail on defamation claims against Oparil and Patton for the March press release, while affirming as to Reza and Cummins; the disposition denied judicial notice and left other issues unresolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the defamation claim against the Attorney Defendants arose from protected activity | GetFugu argued the press release and Tweet targeted nonparticipants and were not shielded | Attorney Defendants contended the statements related to litigation and public issues, fitting CCP 425.16(e) | Yes; the court held the statements arose from protected activity. |
| Whether the March press release and Tweet are shielded by the litigation privilege | Plaintiffs contended republishing to nonparticipants was outside privilege | Defendants argued communications were within the privilege because of litigation context | Not shielded by the litigation privilege; still, the MD minimal merit analysis applied to determine defamation viability. |
| Whether plaintiffs showed minimal merit for defamation against Oparil and Patton | Opposition evidence created a prima facie defamation showing (minimal merit) | Defendants argued statements were true or nonactionable opinion or protected | Plaintiffs met minimal merit; court reversed as to these defendants for defamation. |
| Whether the Tweet is actionable | Tweets could be defamatory if factual and false | Tweet was opinion and not actionable | The Tweet was nonactionable opinion. |
| Whether the trial court properly addressed evidentiary objections in Sturm declaration | Objections should be overruled to consider Sturm's declarations | Objections sustained; evidence not properly weighed on anti-SLAPP record | Not reached on appeal; remanded/left for other considerations. |
Key Cases Cited
- Silberg v. Anderson, 50 Cal.3d 205 (Cal. 1990) (litigation privilege requires publication to participants; nonparticipants generally not privileged)
- Rothman v. Jackson, 49 Cal.App.4th 1134 (Cal. App. 1996) (press conference publication not protected; limits on extending privilege to press)
- Susan A. v. County of Sonoma, 2 Cal.App.4th 88 (Cal. App. 1992) (expands privilege to nonparties with substantial interest but not general press)
- Costa v. Superior Court, 157 Cal.App.3d 673 (Cal. App. 1984) (lodge-members with substantial interest may be privileged participants)
- Abraham v. Lancaster Community Hospital, 217 Cal.App.3d 796 (Cal. App. 1990) (medical community may be privileged in pending litigation context)
- Grewal v. Jammu, 191 Cal.App.4th 977 (Cal. App. 2011) (standard for evaluating anti-SLAPP evidence at issue; de novo review; no credibility weighing)
- Nygard, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027 (Cal. App. 2008) (assessment of whether statements convey provable facts or opinion for defamation)