By Iris Weinmann
By Iris Weinmann
When the defense gets offensive Responding to the defendant’s offensive conduct in employment litigation
Lately, it seems that many defense
attorneys are heeding the old adage, “the best defense is a good offense,” respond- ing to employment lawsuits with their own lawsuits or threats of lawsuits. By attempt- ing to dramatically increase the cost of lit- igation and the work to plaintiff’s counsel, defense counsel may hope to pressure the plaintiff to enter into an early, unfavor- able settlement or to drop his or her law- suit altogether. Properly handled by plain- tiff’s counsel, however, this aggressive tac- tic can backfire on the defendant, raising the ultimate value of the plaintiff’s case and the ultimate cost to the defendant. This article addresses some of the com- mon ways in which defendants try to take the offensive in employment litigation and methods by which plaintiff’s counsel can effectively respond.
The cross-complaint: they sued us, so let’s sue them In a knee-jerk reaction to the employ-
ee’s lawsuit, the employer may file its own
action, hoping to put pressure on the plaintiff and increase leverage for settle- ment.When faced with a cross-complaint, plaintiff’s counsel should first determine whether the cross-complaint qualifies as a SLAPP suit under Code of Civil Procedure section 425.16. A SLAPP suit is one brought, not to vindicate a legal right, but to prevent citizens from exercising their political rights or punishing those who have done so. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815 [33 Cal.Rptr.2d 446, 449] overruled on other grounds in Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 68 [124 Cal.Rptr.2d 507, 519].) “SLAPP” is an acronym for “strategic lawsuit against public participation.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732 [3 Cal.Rptr.3d 636, 637].) Section 425.16 was enacted to pro-
tect the exercise of a person’s First Amendment rights of free speech and petition. (Code Civ. Proc., § 425.16.) The Legislature’s intent in enacting sec-
tion 425.16 is set forth in the statute itself:
(a) The Legislature finds and declares that there has been a disturb- ing increase in lawsuits brought prima- rily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(Code Civ. Proc., §425.16 (a).) In enacting section 425.16, the
Legislature created a procedural mecha- nism by which SLAPP suits can quickly be dismissed – a special motion to strike. (Code Civ. Proc., § 425.16(b)(1).) Such a motion must be filed within 60 days of service of the complaint. (Code Civ. Proc., § 425.16(f).) Cross-complaints may be subject to
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special motions to strike under section 425.16. (Wilcox, supra, 27 Cal. App. 4th at 813.) The types of claims subject to special motions to strike vary, but may include some of the more common causes of action raised in employer’s cross complaints, such as defamation, trade libel and interference with prospective economic advantage. (See Computer Express, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1014 [113 Cal.Rptr.2d 625, 643-644] (causes of action for trade libel and interference with prospective economic advantage held subject to special motion to strike); Commonwealth Energy Corp. v. Investor
See Offensive, Page 46
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