Attorney Sanctioned Over $24K for Frivolous SLAPP & Appeal

Earlier this year, the almost $25,000 in sanctions turned heads in Clarity Co. Consulting, LLC v. Gabriel (D2d6 Apr. 12, 2022) 77 Cal.App.5th 454. (We covered Clarity in episode 31 of the California Appellate Law Podcast.) But there are two important lessons about anti-SLAPP motions in the case, involving a garden-variety contract complaint for failing to pay a service agreement. They are worth bookmarking, as they still come up too often in anti-SLAPP motions:

Just because there is litigation-related activity alleged in the complaint, that does not necessary make the complaint a SLAPP. It is only a SLAPP if the activity is the “principal thrust or gravamen” of the cause of action. Yes, you already knew that. And that is what Clarity held: everbody knows that, so if you don’t know it by now and file an anti-SLAPP motion based on incidental litigation activity, get ready to get sanctioned.
Just because there is speech alleged in the complaint does not mean it is subject to the SLAPP statute. The speech has to be relate to a public issue or issue of public interest. (That is why there are two “Ps” in the acronym.) Yes, you already knew that, too. But that is Clarity’s point: everybody knows that, so if you insist on filing an anti-SLAPP motion based on private speech, get ready to get sanctioned.

Finally, the Clarity court offers this PSA on behalf of appellate attorneys everywhere:

“[T]rial attorneys who prosecute their own appeals … may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450, 77 Cal.Rptr.2d 463.)”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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