SLAPP Solutions Daily Journal Publications Ruling puts Mattel's Lawsuit Back in Business

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Daily Journal - - Jul 3, 2002

Ruling Puts Mattel's Lawsuit Back in Business

By Katherine Gaidos
Daily Journal Staff Writer
LOS ANGELES - A defendant on the losing end of a special motion to strike under California's anti-SLAPP statute is entitled to have the trial automatically put on hold while he appeals his lost motion, an appellate court has ruled for the first time.
The published decision comes from toy maker Mattel's malicious prosecution suit against Los Angeles attorney James Hicks and his former firm, Luce Forward Hamilton & Scripps.
The 2nd District Court of Appeal agreed Friday with the trial court's decision that the Barbie-maker's suit was not a strategic lawsuit against public participation, or SLAPP. In addition to shedding light on the mechanics of anti-SLAPP motions, the ruling puts Mattel's Los Angeles lawsuit back in business. Mattel v. Luce Forward, BC244549 (Los Angeles Super. Ct., filed Feb. 7, 2001).
The appellate court took Hick's appeal because "no reported case has yet directly addressed whether an automatic stay results when the moving party appeals from denial of a special motion to strike," Judge J. Gary Hastings wrote.
The decision clarifies the workings of the anti-SLAPP statute for both plaintiffs' lawyers and First Amendment attorneys.
"There is no published case directly stating that, and I think it's about time," San Diego anti-SLAPP specialist James Moneer said.
Although the state Legislature said that the trial court should place a lawsuit on hold pending a defendant's appeal of a failed anti-SLAPP motion to strike, trial courts have sometimes continued cases while an appeal is pending, Moneer said.
The anti-SLAPP law enacted by the Legislature in 1992 was intended to protect defendants from meritless litigation involving free speech. An anti-SLAPP motion to strike, which works like a summary judgment motion, can in some cases be an effective tool for quickly and cheaply disposing of litigation that was meant only to intimidate.
Davis Wright Tremaine partner Gary Bostwick said the appellate court's ruling could give SLAPP defendants a second chance to avoid the time and cost of litigation.
"For the defendant, they no longer have to have the anti-SLAPP motion option basically taken from them by an erroneous decision," Bostwick said.
But libel lawyer Neville Johnson of Johnson & Rishwain in Los Angeles said the automatic stay hands an unfair delay to the lawsuit's plaintiff.
"It's outrageous. The appeal process can take, depending on the jurisdiction, up to 18 months," Johnson said.
"The longer the case languishes, the more difficult it is for the plaintiff to prove his case," libel lawyer Barry Langberg of Stroock & Stroock & Lavan said.
Mattel filed its malicious prosecution suit after it defeated a copyright infringement claim that Hicks filed in U.S. District Court on behalf of Harry Christian, whose daughter had copyrighted a cheerleader doll in 1997. That first suit claimed that certain Barbie doll heads infringed on the Christians' copyright, but Mattel pointed out that the Barbie heads in question had been copyrighted five years before Christian's.
Nora Manella, a judge for the U.S. District Court for the Central District, dismissed the lawsuit, ruling that it was frivolous. Manella ordered Hicks, who was videotaped during a settlement conference hurling Barbie dolls across the room, to pay $501,565 in Mattel's attorney fees under Federal Rule of Civil Procedure 11.
"Predictably, after resolution of the underlying action, this action for malicious prosecution was filed against appellants," Hastings wrote in the opinion.