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Al-Albustani v. Alger, 2022 WL 3213331 (W.D.Wa., Aug. 9, 2022). ♦ Al-Albustani v. Alger, 2022 WL 3213331 (W.D.Wa., Aug. 9, 2022). (1) Background: Plaintiff alleges that Defendant made false and defamatory statements about him on a radio show, claiming he murdered his wife. Plaintiff sued Defendant for copyright infringement, violation of the Washington Personality Rights Act (WPRA), invasion of privacy by false light, intentional infliction of emotional distress, and negligent infliction of emotional distress. (2) Defendant's Motion: Defendant filed a motion to dismiss under the Washington Uniform Public Expression Protection Act (UPEPA), which is Washington's anti-SLAPP law. Defendant argued that her statements were opinions and that she did not mention Plaintiff by name. (3) Court's Ruling: The court granted Defendant's motion in part and denied it in part. Copyright Infringement: The court dismissed this claim with prejudice because Plaintiff abandoned it. WPRA: The court dismissed this claim without prejudice because Plaintiff failed to allege that Defendant used the deceased's name for advertising purposes. Plaintiff was given leave to amend this claim. Invasion of Privacy by False Light: The court denied the motion because Plaintiff sufficiently alleged that Defendant's statements were false and highly offensive. Intentional Infliction of Emotional Distress: The court denied the motion because Plaintiff sufficiently alleged that Defendant's statements were outrageous. Negligent Infliction of Emotional Distress: The court denied the motion because Plaintiff sufficiently alleged that Defendant's statements caused him emotional distress. (4) Key Takeaways: The court applied a two-pronged standard for UPEPA motions: If the motion challenges the legal sufficiency of a claim, the court applies the Rule 12(b)(6) standard; If the motion challenges the factual sufficiency of a claim, the court applies the Rule 56 standard and allows discovery. The court found that even opinion statements can be actionable under false light if they falsely express or imply provable facts about the plaintiff. The court found that a single, outrageous statement on a nationally syndicated radio show can be sufficient to state a claim for intentional infliction of emotional distress. The court found that PTSD can be sufficient to state a claim for negligent infliction of emotional distress. ♦

Boshears v. People Connect, Inc., 2022 WL 888300 (W.D.Wa., March 25, 2022).

Jha v. Khan, 2022 WL 16918101 (Wash.App., Div. 1, Nov. 14, 2022). ♦ This Washington Court of Appeals case, Jha v. Khan, concerns the first appellate application of the Uniform Public Expression Protection Act (UPEPA), a law designed to prevent Strategic Lawsuits Against Public Participation (SLAPPs). Siddharth Jha, a property developer, sued Varisha Khan, a political candidate, for invasion of privacy by false light based on statements Khan made about Jha in her campaign materials. These statements referenced a prior lawsuit against Jha alleging abuse and revenge porn. Khan moved to dismiss under UPEPA. The trial court denied the motion, finding material facts in dispute. The appeals court reversed. The court held that UPEPA applied because Khan's statements, made in a political campaign article criticizing her opponent, were on a matter of public concern. The court then found that Jha failed to establish a prima facie case of invasion of privacy by false light because he didn't prove Khan's statements were false. The court reasoned that the statement about the lawsuit was true, and the statement about Jha disregarding public transparency was an opinion. Furthermore, the court found Khan's statements were protected by the fair reporting privilege, as they were a fair abridgement of the New York lawsuit. Finally, the court held that the trial court erred by allowing Jha to amend his complaint after Khan's UPEPA motion was filed, as this violated the automatic stay provision of UPEPA. The case was reversed and remanded with instructions to dismiss Jha's claims with prejudice and award Khan attorney fees and costs at both the trial and appellate levels. ♦

Project Veritas v. Leland Stanford Junior Univ., 2022 WL 1555047 (W.D.Wa., May 17, 2022). ♦ Project Veritas sued Stanford University and the University of Washington for defamation, alleging that they published a blog post and collaborated with the New York Times to discredit a Project Veritas video about alleged voter fraud. The district court dismissed the case with prejudice. It found that the statements in the blog post and subsequent New York Times articles were non-actionable opinions protected by the First Amendment, not factual assertions that could be proven false. The court applied Washington's anti-SLAPP statute (UPEPA) to Stanford's motion to dismiss, but not to the University of Washington's, finding that UPEPA did not apply to governmental entities. Subsequently, the court granted Stanford's motion for attorney's fees under UPEPA, awarding them $149,596.90. ♦

Torchstar Corp., Hyatech, Inc., 2023 WL 137762 (E.D.Wa., Jan. 9, 2023). ♦ Torchstar Corp. sued Hyatech, Inc. for copyright infringement and unfair competition related to the sale of LED products on Amazon. Hyatech counterclaimed for tortious interference, alleging Torchstar falsely accused them of infringement to get their products delisted from Amazon. Torchstar moved to dismiss Hyatech's counterclaim under Washington's anti-SLAPP statute (UPEPA), arguing their actions were protected petitioning. The court denied Torchstar's motion. It found the Noerr-Pennington doctrine (protecting petitioning of government) inapplicable to Torchstar's complaints to Amazon, a private entity. However, the court also found genuine issues of material fact existed regarding whether Torchstar's lawsuit constituted "sham litigation," preventing dismissal of Hyatech's counterclaim. The court determined that Hyatech had stated a valid cause of action and that there were genuine issues of material fact precluding summary judgment. Therefore, the court denied Torchstar's motion to strike and awarded no attorney's fees. ♦

Davenport Extreme Pools & Spas, Inc. v. Mulflur, 2024 WL 2982718 (Ky.App., June 14, 2024). ♦ This Kentucky Court of Appeals opinion affirms the trial court's dismissal of a lawsuit filed by Davenport Extreme Pools & Spas, Inc. against the Mulflurs and others. Davenport alleged tortious interference and defamation stemming from negative online and private communications about their pool installation services. The trial court dismissed the case under Kentucky's Uniform Public Expression Protection Act (UPEPA), a new anti-SLAPP law. The appeals court held that: (1) UPEPA applies retroactively: The court found UPEPA to be a procedural, not substantive, change, thus it applies to events preceding its enactment. This contradicts a prior, non-binding opinion from the same court. (2) UPEPA does not violate jural rights: The act doesn't abolish or restrict existing common-law rights of recovery. (3) The communications were protected under UPEPA: The court rejected Davenport's argument that the communications were private and not protected. The court found the communications fell under UPEPA's broad definition of protected speech concerning matters of public concern, specifically consumer reviews. (4) The tortious interference claims failed: Davenport failed to establish a prima facie case, showing no causal link between the communications and the cancellation of a pool contract. (5) The defamation claims failed: The court deemed the allegedly defamatory statements to be non-actionable opinions based on known facts, not provably false statements. (6) The UPEPA fee provision is not unconstitutionally vague: The court found the statute sufficiently clear for courts to determine which fees are related to the UPEPA motion. (7) The award of attorney's fees was proper: The trial court did not abuse its discretion in awarding fees for the entire representation, not just the UPEPA motion. (8)The court lacked jurisdiction on the conversion of fees to a civil judgment: Davenport failed to file a separate notice of appeal regarding this issue. The court affirmed the trial court's decision in its entirety, except for the issue of converting the attorney's fees to a civil judgment, which it declined to address due to lack of jurisdiction. The court also denied a motion by the Mulflurs to take judicial notice of additional evidence. ♦

Peach v. Hagerman, 2024 WL 1748443 (W.D.Ky., April 23, 2024). ♦ This memorandum opinion and order addresses several motions in the case Peach v. Hagerman. Plaintiff Peach moved to dismiss the defendants' counterclaims for defamation, arguing the Kentucky statute of limitations barred them. He also moved to strike the defendants' untimely response and sought expedited review under Kentucky's Uniform Public Expression Protection Act (KUPEPA). The court denied Peach's motion to strike, finding the delay excusable due to a calendaring error and lack of prejudice to Peach. The court also denied Peach's motion to dismiss the counterclaims, holding that because the plaintiff's initial complaint was timely, the defendants' compulsory counterclaims, logically related to the original complaint, were also timely, even if filed after the statute of limitations had run on the underlying events. Finally, the court denied Peach's motion for expedited review under the KUPEPA, finding that the act's procedures are preempted by the Federal Rules of Civil Procedure because they create a higher burden of proof and evidentiary standards than those rules allow. The court reasoned that applying the KUPEPA would require treating the motion as a summary judgment motion, which would be premature given the pending discovery deadlines. The joint motion for a status conference was denied as moot. ♦

Thurman v. Cowles Co., 2024 WL 119333 (Wash.App., Jan. 11, 2024). ♦ This Washington Court of Appeals case, Thurman v. Cowles Co., concerns the application of the Uniform Public Expression Protection Act (UPEPA), designed to expedite dismissal of lawsuits targeting free speech. Thurman sued Cowles (publisher of the Spokesman-Review) for defamation and invasion of privacy after an article about his firing from the Sheriff's department. The court addressed several key issues: (1) Retroactivity of UPEPA: The court held that UPEPA applies to causes of action asserted on or after its effective date, even if the initial complaint was filed earlier. This means Thurman's amended defamation claim, though part of a pre-UPEPA lawsuit, fell under the Act. (2) Timeliness of UPEPA motions: Filing an amended complaint restarts the 60-day clock for filing a UPEPA motion for new claims, so Cowles' motion was timely. (3) Conflict with Court Rules: The court found that where UPEPA's procedural rules conflict with Washington Supreme Court rules (specifically regarding discovery and appeals), the court rules prevail. The UPEPA's automatic right of appeal from a partial denial of expedited relief was deemed inconsistent with existing appellate rules. (4) Constitutional Challenges: Thurman's constitutional challenges to UPEPA (access to courts, equal protection) were rejected. The court found that the UPEPA's temporary discovery stay didn't violate access to courts, and that the Act's differential treatment of plaintiffs and defendants in defamation cases involving public concern was rationally related to its purpose of protecting free speech. (5) CPA Claim and Attorney Fees: The court affirmed the dismissal of Thurman's Consumer Protection Act (CPA) claim, finding it barred by the First Amendment. The court remanded the case for consideration of Cowles' UPEPA motion regarding the defamation claim and ordered Cowles to receive attorney fees and costs related to the successful dismissal of the CPA claim. Further fees and costs will be awarded if Cowles prevails on the defamation claim. ♦

Briggs v. Eden Council, 19 Cal.4th 1106 (1999).

Ketchum v. Moses, 24 Cal.4th 1122 (2001).

City of Cotati v. Cashman, 29 Cal.4th 69 (2002).

Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 52 P.3d 685 (2002).

Navellier v. Sletten, 29 Cal.4th 82, 52 P.3d 703 (2002).

Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (2002).

Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728, 74 P.3d 737 (2003).

Gates v. Discovery Communications, Inc., 34 Cal.4th 679, 101 P.3d 552, 21 Cal.Rptr.3d 663 (2004).

Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180, 106 P.3d 958, 25 Cal.Rptr.3d 298 (2005).

Kibler v. Northern Inyo County Local Hosp. Dist., 39 Cal.4th 192, 138 P.3d 193, 46 Cal.Rptr.3d 41 (2006).

Rusheen v. Cohen, 37 Cal.4th 1048, 128 P.3d 713, 39 Cal.Rptr.3d 516 (2006).

Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, 139 P.3d 30, 46 Cal.Rptr.3d 638 (2006).

Newport Harbor Ventures, LLC v. Morris-Cerullo World Evangelism, 4 Cal.5th 637 (Cal., Mar. 22, 2018).

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