Introduction

For a second time, the Fourth Appellate District has ruled that two California doctors are unable to escape a defamation lawsuit brought by their former attorney. The doctors allegedly created a defamatory website against their former attorney, calling out his competency but also the safety of his office. The latter was unprotected speech, according to the court.[1]

Anti-Slapp

The anti-SLAPP statute allows a defendant to bring a motion to strike a lawsuit if the claims arise from acts in furtherance of a person’s “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.[2] The statute is intended to protect against lawsuits filed for the purpose of chilling free speech so as to “encourage continued participation in matters of public significance.”[3] If successful, the lawsuit will be stricken and the defendant recovers attorney’s fees and costs associated with having to defend against the SLAPP.

In what is known as the “catch-all” provision, the statute specifies protected acts include “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”[4] Thus, in anti-SLAPP cases, courts are called upon to interpret the disputed speech/conduct to determine if it falls within the protection of the statute.

The Facts

In 2016, Siamak Nabili, M.D. and Nili N. Alai, M.D., approached Mark B. Plummer, an attorney with the Law Offices of Mark B. Plummer, P.C., to represent them in a medical malpractice case.[5] Plummer agreed to assist on a limited basis, only helping Nabili and Alai with expert discovery.[6]

In 2018, Nabili and Alai allegedly refused to pay Plummer for his work, and he sued them for fees in Orange County Superior Court.[7] They filed a cross-complaint against Plummer and Plummer Law.[8]

In late 2019, Plummer received notice that a website making disparaging statements about him and his law practice.[9] Initially, Plummer filed a complaint against the website host, networksolutions.com in Orange County Superior Court.[10] Through the discovery process, Plummer learned that the creators of the website were Nabili and Alai and added them as a defendants in the ongoing matter.[11]

Plummer alleged four causes of action against Nabili and Alai, including defamation and interference with prospective business advantage.[12] Plummer said the website falsely described him as incompetent and dishonest, his office as unsafe, and his practice as vexatious.[13]

Both Alai and Nabili filed anti-SLAPP motions in early 2021, and the trial court first denied Nabili’s in May 2021. Nabili appealed, and a California appeals court found the evidence was not sufficient to show all of defendants’ statements were protected speech.[14] This was because the website included language about the safety of Plummer’s office which the court ruled was unprotected speech.[15]

On remand, Plummer dismissed the pieces of the complaint the appeals court took issue with, including language stating he was “incompetent and dishonest” because this speech concerned a matter of public interest and had been made in a public forum.[16] The trial court denied Alai’s anti-SLAPP motion, which was still pending through Nabili’s appeal, ruling the motion was moot after Plummer removed the protected language from his complaint.[17]

On February 9, 2023, Alai filed an ex parte application for an order disqualifying Plummer from serving as plaintiff’s counsel based on California’s rules of professional conduct on the grounds that a lawyer should not be an advocate in a case if the lawyer is likely to be a witness in the matter.[18] This ex parte application was denied days later because Alai did not address “any claimed irreparable harm, immediate danger or other statutory basis for granting relief ex parte, much less makes an affirmative factual showing of such.”[19]

Weeks later, Alai filed an appeal of both the order dismissing the anti-SLAPP motion and the denial of the ex parte application.[20] The court ultimately found the ex parte application was not appealable and affirmed the trial court’s ruling dismissing the anti-SLAPP motion because the website statements did not concern a public issue.[21]

Conclusion

The Fourth District’s ruling reemphasizes the importance of evaluating the content of speech. It is important to evaluate whether the statement actually furthers the discourse on a matter of public concern when reviewing an anti-SLAPP motion or determining whether one should be filed.

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Sources

[1] L. Offs. of Mark B. Plummer v. Alai, No. G062355, 2024 WL 1926594, at *1 (Cal. Ct. App. May 2, 2024), reh’g denied (May 21, 2024)

[2] California Code of Civil Procedure §425.16(b)

[3] CCP §425.16(a)

[4] CCP §426.16(e)(4)

[5] L. Offs. of Mark B. Plummer v. Alai, at *1 (Cal. Ct. App. May 2, 2024), reh’g denied (May 21, 2024).

[6] Id.

[7] Id. at *2

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at *3.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at *4.