Tuesday, July 22, 2014

Gotterba v. Tavolta (Cal. Ct. App. - July 22, 2014)

When I saw the caption to this opinion, I figured it'd be about that Travolta.  Sure enough, it is.

Which is not all that surprising.  According to the Census Bureau, there are fewer than 100 people with the last name of Travolta in the entire United States.  Presumably only a portion of those are involved in lawsuits in California.  And it's not like the most famous Travolta is litigation-shy.  He's had some prior experience with the civil and criminal justice system here.  So the guess that this is yet another foray in this field was a pretty good one.

The case is also fairly significant even beyond mere star-watching.  Not because of the resulting legal doctrine articulated by the Court of Appeal, however.  But rather for two reason:

(1)  It highlights just how frivolous some anti-SLAPP appeals are. Here, someone who wants to write a book about his experiences with Travolta files a declaratory relief action seeking a declaration that he's not bound by a purported confidentiality clause.  At which point Travolta and his legal minions file an anti-SLAPP motion, claiming that the lawsuit arises out of protected activity.

That's absurd.  It's a pure declaratory relief action.  It arises entirely out of a purported contract.  The trial court held that this isn't a SLAPP suit.  The Court of Appeal agreed.  Which is not surprising.  As it's a no-brainer.  Travolta's argument that the lawsuit "arises out of protected activity" because his attorneys sent threatening letters to the plaintiff in advance of the lawsuit is frivolous.  You don't turn a contractual declaratory relief action into a SLAPP lawsuit merely by hiring lawyers to shoot off a letter.


(2)  It also highlights how you can win an anti-SLAPP motion even if you lose.  Plaintiff filed his action for declaratory relief so he could quickly obtain a determination of whether he was permitted to publish his book.  Travolta lost his anti-SLAPP motion, to be sure.  But just by filing (and losing) it, he delayed the lawsuit -- and hence the book -- by at least two years.  So plaintiff has to sit on his butt while this meritless motion (and appeal) works its way through the system.

Strike up another example of the power of tactical anti-SLAPP motions.

Given these tactical consequences, alongside the obvious lack of merit of Travolta's appeal, I was somewhat surprised not to see any consideration given to sanctions.  They might well have been appropriate.  (Reading between the lines, it may be that the Court of Appeal didn't feel like imposing sanctions because, in truth, it looks like plaintiff's lawsuit isn't particularly strong on the merits.  He's claiming that an unsigned "draft" contract is the "real" contract and a later signed contract -- the one with the confidentiality clause -- is a "fake".  I'm not especially impressed with that position.  Sure, the lack of underlying merit of plaintiff's claim is technically irrelevant to whether the defendant's appeal of an anti-SLAPP motion denial is frivolous.  But sometimes even doctrinally irrelevant things actually make a big difference.  Perhaps including here.)

In the meantime, Travolta loses.  But, in the larger scheme of things, he still wins.