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Defamation and the Disgruntled Defendant

BY Janice G. Inman
November 02, 2017

In last month's newsletter, we began discussion of a defamation claim brought against two attorneys, Brian Kabateck and Robert Hutchinson, who took to the airwaves to publicize their client Mary Cavallieri's complaints against a hospital and its owner, Michael D. Drobot. The defendants in that matter sought redress for what they claimed were untrue, and very unflattering, statements, but the attorneys moved for dismissal of Drobot's claims in accordance with California's anti-SLAPP (anti-Strategic Lawsuit Against Public Participation) statute (Code Civ. Proc., § 425.16, subd. (b)). We continue herein with the court's reasons for granting the attorneys' motion.

Prong Two: Drobot's Likelihood of Success On the Merits

After defendants have established that their allegedly defamatory statements were made in furtherance of their right of free speech or petition under the United States Constitution or the California Constitution in connection with a public issue, the second thing that courts must question when a defendant seeks dismissal through an anti-SLAPP motion is whether the claimant has carried his burden of establishing a probability of success on the merits of his claim. According to precedent set in several cases, such as Navellier v. Sletten (2002) 29 Cal.4th 82, a “probability” of success is defined not as requiring that a plaintiff is more likely than not to win; the standard is lower, so that a claimant may keep his claim alive if he can show that his cause of action has “even minimal merit.”

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