Jeffrey Lewis
Welcome everyone, I am Jeff Lewis.

Tim Kowal
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague.

Jeffrey Lewis
And please leave us a positive review on Apple Podcasts or wherever you listen to the podcast.

Tim Kowal
All right, Jeff, we're nearing the end of 2025. I've got a handful of cases that I flagged recently from not necessarily exclusive to December. I've been kind of gathering some interesting cases to me that I've a couple of them I like to talk with you about. One's an anti-SLAPP case. Another is kind of an interesting case on standing. it introduced me to the concept, maybe it's old to you and to a lot of our listeners that standing and

The idea of judicial power in California is different than we all learned in law school when it comes to the federal system. And that's illustrated in a recent case where no actual injury was needed. It was a case about a debt collector who got hit with statutory penalties and fees, even though the plaintiff was not harmed in any way by the font choice. That was the subject of that lawsuit. So Professor Sean...

Martin highlighted that one I thought would be interesting to talk about. And then I've got some LinkedIn sanctions concerning some voir dire in violation of a local court rule and federal court appealability issue. And I guess you had something else to share about the Gopher Media SLAPP case. And so we'll get to that as well.
 
But let's start with OneTaste Inc versus Netflix. This is an anti-SALPP case that I flagged. I figured you would be all over this one, Jeff, just because it's anti-SALPP and you are the anti-SALPP authority. It's OneTaste Incorporated versus Netflix. It's a second district, third division case. It's from October. So I'm getting to this one a little bit late. But what happened in this one is that OneTaste...

sued for defamation against Netflix because Netflix apparently produced and distributed on its streaming platform, a documentary that featured OneTaste Business, which has a little bit of an icky description. Their business model is something having to do with, and this is the term that appears in this published Court of Appeal decision, orgasmic therapy.

something to that effect. And it's basically what you would think. It's kind of like a massage or some kind of physical therapy on women that has to do with what the name implies. And there was some allegations of harassing and exploitation associated with that, probably in ways that also I'll leave to the listener's imagination. One taste disputes

Any of these allegations apparently all the allegations came from a single source and there was some allegations that the that the source was manufacturing or fabricating some of its allegations There was a handwriting expert that examined the sources Journal entries from which many of the allegations were derived So there was what seemed to me minimal merit to the claims on prong two

of the anti-SLAPP, but did the case in on the anti-SLAPP posture for OneTaste is the New York Times versus Sullivan standard. It was deemed a quasi-public figure, so its minimal merit for its defamation claims had to rise to the ⁓ recklessness or maliciousness standard, and it couldn't do that, the Court of Appeal held. And so the anti-SLAPP was granted. Another reason that...

Netflix was given some leeway is because it was given leeway because of its journalistic discretion and because it was held it was not reckless to publish the documentary spreading based on the allegations that were in dispute because other reputable journalistic organs like BBC and I think Bloomberg had also published stories about OneTaste. But as OneTaste pointed out,

those news reports were based on the very same source that was in dispute in this case. So it was kind of a fruit of the poisonous tree after a fashion where, look, we're pointing to the fact that the source is not credible. Netflix didn't do any due diligence into the source. And so it doesn't matter if these other media organs also publish based on the same source. You have to show that there was some due diligence to vet the

validity or credibility of the underlying source. So I had some concerns about this, Jeff, and tell me as a from your perspective as an anti-SALPP expert if these concerns are valid. I wonder if there is a catch-22 here where.

plaintiffs who claim that they're the victim of false statements can, at the hands of a journalistic organ, will ever be able to have their day in court based on the one-two punch of California's anti-SALPP statute and the New York Times versus Sullivan heightened standard. Because if it's a defamation claim based on a documentary published by someone like Netflix, obviously it's going to satisfy prong one. And on prong two,

How can you ever satisfy minimal merit if A, you never have the opportunity to get discovery and B, you have to satisfy the heightened standard of malice or recklessness, especially if the court is going to call you basically a de facto public figure if you have been the subject or victim of this public shaming at the hands of a journalistic ⁓ institution. So that's my concern is that this

basically leaves defamation claims like this one non-justiciable, at least in a civil forum, unless maybe there is a, maybe there are criminal, there are prosecutors who can bring criminal claims, but is civil defamation just basically off the table in a case like this?

Jeffrey Lewis
is it off the table? Let me say, ⁓ this, I wrote about this case, a few weeks back on my LinkedIn account. And this is how I started my piece. in a defamation case involving public figure plaintiffs, actual malice is the cliff. A case usually drives off of, and meaning defense lawyers like me, and I'm totally biased towards the defense. When we, have a case where there's even a hint or suggestion.

that the plaintiff is a public figure or a limited public figure. Actual malice is usually the most fertile ground to get the case dismissed because it's really hard to prove, really hard to prove. And I think that's the way it should be because it reflects a policy consideration that people who are in the public figure already have access to big microphones and broadcasts and can set the record straight themselves. They don't need a big multimillion dollar jury verdict to help them.

So all that said, all my pro-defendant bias, I am troubled with some of the factors used by the court here to find that there was not enough evidence of actual malice. It seemed like there was some circular logic, like everybody else published that same story, so there must be some truth there, so therefore you can't say that Netflix had actual malice.

I am troubled with some of the reasoning. It's a very close case. It's a gray area case in terms of the line between enough evidence. But at the anti-SALPP stages, the close cases should squeak by the anti-SALPP process. So I'm a little troubled by this case.

Tim Kowal
what did you think about the move by the court of appeal to label OneTaste a public figure or a quasi public figure? My understanding is that the grounds for that finding is that they were the subject of this documentary and that they were subject of the news reports by Bloomberg and BBC and maybe others. But is that enough? The fact that they have been

the subject of news reports, the news reports which themselves are in dispute, or at least the source of the information in the news reports are in dispute, and have it been independently verified, is that enough to make them a public figure so that they can't even... It just seems... It feels like bootstrapping to me, in other words. Like if they were independently considered a public figure because they had appeared and there's evidence...

or some incident that was not in dispute, that they were a movie star or they were something else that's independently verifiable. But the fact that makes them a public figure is the very fact that is in dispute in this lawsuit.

Jeffrey Lewis
Well, look, I think your discomfort is there's a line of cases that said when someone voluntarily steps into the spotlight, when they seek out publicity, when they voluntarily, I think the phrase theology is voluntarily inject themselves into the controversy. That's an easy one to find someone's either a public at all, all purpose public figure or limited public figure. But I don't think that's the only path to get to public figure status. I think there are some situations where somebody

is so notorious, either in general or in a limited community sense, that even without some voluntary action, stepping into the spotlight, they can be deemed a public figure just by virtue of that person's relationship with the public, even if they were dragged kicking and screaming into the spotlight.

Tim Kowal
Well, that's my problem here is they don't have a relationship with the public any more than any other private business. And just being a private business that's open to the public doesn't make you a public figure. Here it seems that they've solely been dragged kicking and screaming into the public. And if they have been dragged, and screaming into the public limelight in a separate independent case, maybe at a separate lawsuit, and especially if they have been found.

liable in that other lawsuit. Now they are up a public figure. It's a matter of public record. They've been adjudicated to have done a very bad thing in the public limelight. Now they're a public figure in this second lawsuit. But I'm just talking about it. We're within the four corners of the dispute that is at issue in this lawsuit. Can they be rendered a public figure because of the facts that are currently in dispute?

Jeffrey Lewis
Well, maybe I misread the opinion. don't know that the opinion relies solely on the fact that Netflix did a documentary. And I also know First Amendment protections are diluted most in the area of commercial context. And so when you have a business, and this place is a business, right? They're in the female orgasm business. That type of business I think can be

deemed a public figure a little easier than an individual, let's say, because First Amendment protection is lessened for businesses, I think.

Tim Kowal
Here are couple of the facts that I pointed to that OneTaste offered in support of its Prong 2 minimal merit. OneTaste presented forensic analysis suggesting that the journal entries that were provided by the source of the allegations were typed on a computer in 2020, which was years after the events that they described, rather than being contemporaneous.

Jeffrey Lewis
Mm-hmm.

Tim Kowal
Journal entries as presented in the documentary OneTaste also pointed to inconsistencies in the sources accounts and claim that Netflix had access to information that should have raised red flags about the reliability of the allegations There was also Maybe I'm maybe this is my ignorance, right? I was made aware that that this is why news sources often will reach out

to the subject of an investigation say, you have any comment about this? And if you do that at the very last minute and it's just pro forma, maybe that can undermine the journalist's claim that its investigation was thorough and it was open to receiving evidence that would disconfirm the allegations on the story.

Jeffrey Lewis
Well, yeah, well, let me just share from my anecdotal experience as a defense lawyer who sometimes gets contacted by people who are about to be hit with a hit piece and they're seeking kind of plain of sight advice. It is more often than not, I'm going to say 80 percent, 90 percent more often than not that the author of a hit piece, whether it's a reporter, a filmmaker, etcetera, will wait until the very last minute and make a pro forma. You know, hey,

We're about to accuse you of, you know, assassinating President Kennedy. Do you care to comment? And before that person can consult with a lawyer or figure out, you know, where they were when JFK was shot, the article is out. And, yeah, I don't think asking the other person for ⁓ a comment or the subject of a piece for a comment is particularly insightful for the purposes of either is someone a public figure or.

to have they met the actual malice standard.

Tim Kowal
Well, what happened in this case that's irrelevant to that inquiry is that OneTaste had sent detailed letters to Netflix identifying specific factual problems with the source allegations and offering contrary evidence. The court noted that Netflix did receive those warnings, but still receipt of those warnings with the contradictions and contrary evidence didn't establish actual malice.

or I guess on Prong 2, not even minimal merit for actual malice because Netflix could in its journalistic discretion reasonably choose to believe the source instead. so, again, I was surprised that this didn't even get to minimal merit. Isn't it almost supposed to be a tribal issue of fact on the Prong 2 level?

Jeffrey Lewis
Well, yeah, you're supposed to believe all the plaintiff's evidence and ignore all of the defendant's evidence unless the defendant's evidence conclusively establishes one of those matter of law defenses like statute of limitations or privilege and that kind of thing.

Tim Kowal
Yeah. So is this in this rubric, Netflix was arguing that, we got the contrary evidence, but we figured so what? You know, we are the sole arbiters of credibility of the information that we receive. And so we can just decide to believe our source and disregard all of the inconsistencies in the sources accounts and all this other contrary evidence. And is that a legal privilege that they could, assuming they had gotten to trial?

Is that a legal privilege that they can assert in order to defend themselves against actual malice claims?

Jeffrey Lewis
Well, look, it's a gray area. When a lawyer writes to somebody like Netflix and says, hey, you're about to publish something that's false. And here's a list of all the reasons it's false. I don't think a lawyer letter on its own alone without some real evidence is enough to show that Netflix operated in terms of actual malice. Now, if the lawyer letter included signed affidavits saying all of the witnesses who supplied Netflix information are fabricated people and never existed.

That's pretty powerful evidence. And the question is, is the evidence presented here in this case closer to just a mere protest that everything was false? Or is it closer to not only is there no evidence, but if you put 100 journalists in a room, none of those journalists would publish a story like this or at least look for more information because these sources are not credible.

Tim Kowal
Yeah. Okay, well, so as it stands based on this OneTaste versus Netflix published decision, you cannot sue Netflix for publishing a documentary against you calling your business an orgasm cult. Okay, so that's the upshot of OneTaste. Now moving on to the next case, here's, I'll try to segue it to make it a slight relation where ⁓

Jeffrey Lewis
Yeah.

Tim Kowal
California will tend to close its doors to defamation claims as a result of both the anti-SALPP, especially in conjunction with New York Times versus Sullivan standard. In other types of cases, California doors to civil lawsuits are flung wide open. You don't even need to show an actual injury if you're the plaintiff. And that was the upshot of Kashanean versus national enterprise systems. This is a debt collection case.

where the plaintiff sued the debt collector not because the plaintiff suffered any harm of any sort. Instead, the debt collector had sent a collection notice to the plaintiff and the notices required by the Fair Debt Collection Practices Act were smaller than the other type. They were like eight point type. It was smaller font than

other than the actual debt language that it was trying to collect. And that's a violation of the FDCPA Fair Debt Collection Practices Act. And that calls for statutory damages. And the defendant said, well, hold on, there is no actual injury at stake here. So there's no standing. The plaintiff has no standing to bring this. These statutory penalties should apply only if there is an underlying primary right or...

or primary duty involved that was violated and there was not and the trial court agreed and dismissed the case but on appeal the court of appeal first district held that well that would work in a probably in a law school exam when you're dealing with federal case or controversy type of standing based jurisdiction but we don't have case or controversy in the state California state constitution all you have to show is that there's a dispute and

Whatever that means is just defined by the legislature. Here the legislature is defined as statutory penalty. That's what the plaintiff was seeking here. The statutory elements are met and therefore that's enough for us. So plaintiff gets to collect the bounty essentially.

Jeffrey Lewis
Well, look, this case is not remarkable in my mind because it's the Court of Appeal reading that the legislator has expressed a statutory public policy that a person aggrieved by fonts or aggrieved by other minor violations should always have a remedy and that the absence of actual damages shouldn't preclude

a lawsuit from moving forward. it's not a jurisdictional inquiry. It's a what did the legislature intend in terms of trying to deter debt collectors from engaging in non-compliant activities, whether it's super serious activities or something as as minor as the wrong font. And the legislator spoke and said, yeah, we're going to allow for statutory penalties in addition to actual damages. And therefore, plaintiffs don't ever have to prove one nickel of actual

Damage is proximally caused by a bad font. it's you know a function of the legislature's clear language here

Tim Kowal
Well, I have a couple of problems with this, Jeff. Okay. And fair warning, they are probably esoteric criticisms, but I worry that this type of approach to standing turns courts into compliance police. And if there's no actual case or controversy that's required, all that's required is that the legislature has set a bounty and that any bounty hunter can go around and find,

a claim tickets to go and bring in their claim cards to the courts and say, hey, punch the card and give me my free footlong. That's all that's required. seems as something is off to me. That seems beyond the bounds of the judicial power because the California constitution still does refer to the judicial power. So there is some idea of what it means to be a judicial power. I think even ⁓

Notwithstanding the fact that the words case or controversy don't appear in the California Constitution, I think the judicial power requires there to be an actual controversy. There's gotta be a satisfying answer to the question. What's it to you? You can't just be some schmo off the street who a debt collector notice lying in the gutter and says, hey, wrong font size. I'm gonna go to court and collect my bounty. That seems off to me.

Jeffrey Lewis
Well look, Code of Civil Procedure sections 128.5 and 128.7 already impose a duty on a lawyer and parties not to file complaints for an improper purpose. And lawyers have professional duties about not pursuing improper complaints. Isn't that the answer to filing frivolous lawsuits rather than telling a court, hey, even though the legislature says

people without actual damages have a remedy and we want basically private litigants to be bounty hunters, you the court should simply ignore the legislative language and decline to provide the relief that the statute spells out is available. I don't know. I think if you've got a lawyer or a party who's filing frivolous lawsuits, there's a way to get at those lawyers.

Tim Kowal
Well, I'm not saying that it is frivolous. Obviously, the Court of Appeal didn't think it was frivolous. We're getting to a question of what is the nature of the judicial power? And doesn't it require there to be some skin in the game on the part of the plaintiff, not someone in just trying to collect a free footlong? That just seems, it seems like there's got to be skin in the game. I mean, I get that the legislature did intend to deputize every Californian who could find a notice.

So here's some other examples that I tried to come up with that, know, if the legislature or even a city for that matter decided, we're going to say that, you know, businesses often put up like a warning wet floor, you know, don't slip on the wet floor. What if the legislature decides that, you know, it has to be canary yellow, you know, we don't want any mustard yellow signs in this state or in this city.

So if anyone finds a warning, know, slippery, slippery when wet sign that's in mustard yellow rather than the standard state approved canary yellow or city approved canary yellow, bring this in to your local superior court for a $1,000 bounty. Now you've taken local aesthetic choices and leveraged the power of the state court system to ⁓ enforce local aesthetics.

You can do the same thing on any kind of warning labels or warning signs or notices. The font or kerning on workplace posters, storefront signage for that matter. These are all just aesthetic choices. the purpose for them is built in. Like ⁓ a store, any business owner would put a slippery when wet sign out in order to curtail liability.

because someone who slips and falls will go and sue them and then the business owner's defense will be, look, you know, we got to hose down the front of our store from time to time and we put up these signs everywhere in bright yellow. The fact that they were mustard yellow rather than canary yellow shouldn't matter one whit. The plaintiff didn't say that he didn't see the sign. He just ignored it or he's in a hurry and he was negligent. We shouldn't be held to account just because we didn't comply with a local aesthetic choice.

So the purpose behind these warning signs is supposed to be to prevent injury, not to enforce aesthetics. That's my...

Jeffrey Lewis
Yeah, I see. I see your point. I will say there is a state that enacted a law that allowed private citizens with no connection to a pregnant woman to collect a bounty for pregnant women who get an abortion. And there's no suggestion by the Texas lawmakers that those people who those plaintiffs

have any connection to the issue, to the pregnancy, or any dog in the hunt. you know, clear bias here. I favor reproductive rights, but if you're gonna say that a debt collector shouldn't be sued by somebody who's not injured by a font, women in Texas have no business being sued by strangers who just think abortion is bad. That's my two cents.

Tim Kowal
Okay, well, let's leave it at that. I wanted to move on to another sanctions case, but I want to give our listeners a break. This sanctions case does not involve AI. So breathe a sigh of relief. Although of fair notice, I've got another like half dozen of those piled up for our next episode, Jeff.

Jeffrey Lewis
Okay.Ha

Tim Kowal
I do think we should give our listeners more of a break, but the courts don't seem to give us a break on it, probably because litigants are not giving the courts a break on it. This is a real problem. But this sanctions involves LinkedIn. So if you are using LinkedIn to research veneer people, know, prospective jurors, be very careful. Some judges have standing orders about researching prospective jurors information. Judge William Orrick

of the Northern District of California is one such judge with a standing order against using LinkedIn or any other social media to research your prospective jurors. The standing order prohibits using LinkedIn. Why? Because when you, you may know this, Jeff, when you click on someone's profile using LinkedIn, that person will be able to see that you have looked at their profile.

Jeffrey Lewis
Yeah, Tim, you spend way too much time looking at my profile. Yeah.

Tim Kowal
Yeah, I've instructed my staff to direct any notices of restraining orders. So yeah, it notifies when someone views their profiles even apparently even if you're using an an anonymized browser, because Jeff whenever you know, is any responsible LinkedIn lurker knows you open up a incognito browser to go and when you lurk or stock.

But apparently there's still some way that I guess it's not quite anonymized. Maybe you can look up the IP address and backtrace it that way. But in this case, a party's jury consultant unintentionally violated the order and anonymously viewed prospective jurors LinkedIn pages. And when the lawyer realized what happened, she immediately took corrective steps, so did the right thing. She gave the information to opposing counsel and said, hey, know, fair notice, this is what happened.

I wasn't aware of it. I did not intend to do it. She didn't share the information with the lawyer conducting the voir dire She did notify the court so good on her but still the court imposed a sanction on the law firm and a hefty sanction at that ten thousand dollars and ⁓ Here's what the order says about it. It acknowledges, you know everything that happened here This is just a summary of what happened the court acknowledged that ⁓

I am satisfied by the representation of the investigator that it's the policy of her company to only access publicly available information. They and many others consider the information on LinkedIn to be publicly available, which I would as well, but for the separate issue of the automatic notification of the juror, I appreciate that counsel did her best to rectify the violation by prompt disclosure. That said, I am imposing a sanction for two reasons.

First, was the law firm's obligation to comply with my standing order, whether it agreed with it or not. It's failure to adequately inform and supervise its consultants, intentional or not, warrants a sanction. So that's a little harsh, but understandable. Standing orders are to be complied with. Second, I want to emphasize that I remain convinced that the standing order is appropriate. Individual privacy has been eroded over the last 30 years with the advent of various surveillance tools.

Internet, smartphones, social media. I do not think that jurors should lose any remaining privacy interests simply because they're called to do their civic duty any more than I think that jurors should be able to investigate the lawyers in a case before agreeing to serve. And I think the ethical rule that lawyers not contact jurors should be strictly enforced. Council in every case before me are forewarned against future violations of the standing order. No one should take as precedent the modest nature of the sanction in this particular

case. I don't know that I regard 10,000 is particularly modest, but there you have it.

Jeffrey Lewis
Well, yeah, but maybe for a firm of this size it is. Look, I think the intent of this judge was to go far beyond the parties here. The judge is targeting you, Tim.

with the sanctions order in the sense that ⁓ this judge wanted a word far and wide carried on podcasts and other publications that at least in that district, LinkedIn notifications and using LinkedIn is off limits for jury research and deterrent effect for any other firm that ever appears in that district.

Tim Kowal
Yeah, well, we're doing our duty as officers of the court, I guess, to to bring this far and wide. OK, well, so so now now you too, listener, are forewarned and forearmed against using LinkedIn and other social media and other surveillance tools to check up on jurors. OK, a couple a couple other quick ones. I just have one other quick one and then I'll leave it to you, Jeff, to talk about Gopher media.

The US Supreme Court has declined to review a case regarding whether a minute entry constitutes an appealable order. And apparently there's a split on that issue between the Second and the Ninth Circuits. The US Supreme Court said, when was this? May, gosh, was it this long ago? in May. But at least we're catching it before the sunset of 2025.

But there was a second district finding that a Connecticut federal judge's oral ruling and follow-up minute entry were formal orders that triggered the 30-day countdown to appeal. So this was a post-judgment, I think it was a Rule 50B motion, which suspends the time to file the appeal until the motion is ruled on. The motion was ruled on, but it was ruled on in a little bit of a Byzantine order.

with a checkbox on it and it was done orally and then through just a follow-up minute entry. So wasn't like your typical written order with reasoned decision. It was more or less just a minute entry that checked the box saying that this motion has been decided and denied and it was ruled that ⁓ that did begin the 30-day clock. There was not a separate document requirement under Rule 58.

So the subsequent appeal that was beyond that 30 day period was untimely.

Jeffrey Lewis
I got nothing to add.

Tim Kowal
Okay. All right. Yeah, always be conservative about your deadlines to file a notice of appeal.

Jeffrey Lewis
Yeah. And then we want to talk about, know, earlier in the year, we talked about the big Gopher media case, which curtailed in some respects, the ability of federal litigants to appeal a SLAPP order in the Ninth Circuit, which represents a, a cutting back of the,

rights of SLAPP litigants or defendants bringing SLAPP motions in the Ninth Circuit. Not as far back as some people feared, but certainly ⁓ more than SLAPP practitioners like me liked. Anyway, we saw on the Supreme Court docket, or at I noticed, that gopher media has asked the Supreme Court to extend the time.

for filing a cert petition. And they got that to March of 2026. So that signals to me that Gopher Media is going to be seeking a review in the United States Supreme Court on this issue of appellate jurisdiction of SLAPP orders.

Tim Kowal
What do think, Jeff? Are you planning to file an amicus brief in that case?

Jeffrey Lewis
Maybe, you know, I'd like to see the cert petitions, see what kind of arguments they are raising. We'll see.

Tim Kowal
Yeah, yeah, well, I know that I know that both of us think that a federal SLAPP statute is in order. Yeah, well, yeah, we'll we'll we'll stay tuned on that one. All right, well, we do have some other AI sanctions cases that will maybe stick in our listeners Christmas stockings maybe next week or week after. Maybe it'll be a post Christmas gift.

And then we have some new civil rules, including statement of decision procedures, meeting confer, discovery and court reporter procedures, proofs of service procedures to require photographs, and some other interesting civil procedure rules that you will need to know going forward in 2026. So look for that. We're probably gonna drop that in maybe the first week of the new year.

Until then, that'll wrap up this episode. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis
See you next time.