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On Behalf of | Apr 4, 2020 | Firm News

Appellant Michael Lazarin appeals from the superior court’s order denying his Code of Civil Procedure section 425.16 motion to strike a Civil Code section 3344.1 cause of action brought by respondents Lawrence and Sheila Pott (the Potts).

Civil Code section 3344.1 prohibits certain unauthorized uses of the name or likeness of a “deceased personality.” The Potts alleged that Lazarin had used their deceased daughter Audrie’s name and likeness in Facebook posts and at a press conference.

Audrie Taylor Pott was the Potts’ daughter.  In 2012, she was sexually assaulted while unconscious from intoxication, and her assailants distributed intimate photographs of her after the assault. Audrie committed suicide soon after the assault.

Lazarin contends that the Potts’ cause of action targeted his protected speech and that they could not show a probability of prevailing because his speech did not come within the ambit of that statute.

The court, relying on Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), found that “the assertedly protected speech or petition activity was  in violation of section 3344.1.”

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other 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.” (Code Civ. Proc., § 425.16, subd. (e).) “ ‘Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP.[ 4 ]

First, the court decides whether the defendant has made a threshold   showing that the challenged cause of action is one arising from protected activity. . . . If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279 .) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

“ ‘[O]ur cases long have protected speech even though it is in the form of . . . a solicitation to pay or contribute money . . . .’ ” (Village of Schaumburg v. Citizens for a  Better Environment (1980) 444 U.S. 620, 633 ; see also Cornelius v. NAACP Legal Defense and Educational Fund, Inc. (1985) 473 U.S. 788, 799; Riley v. National Federation of the Blind of North Carolina, Inc. (1988) 487 U.S. 781, 796.) “[S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and . . . the reality [is] that without solicitation the flow of such information and advocacy would likely cease.” (Schaumburg, at p. 632.)

The California Court of Appeal agree with Appellant and reverse the superior court’s order.

See Pott et al. v. Lazarin.

If you are faced with California’s Anti-SLAPP issues and dispicable defamation, you need a highly skilled and tenacious attorney as your advocate!  Contact the Law Office of Robert Rodriguez immediately! 209-596-4263  or 510-736-4033.

Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the California Court of Appeal.  The Law Office of Robert Rodriguez does not represent guarantees.