Statements Made To An Employee To Get A Release Were Not Protected Anti-SLAPP Speech

CATEGORY: Client Update for Public Agencies
CLIENT TYPE: Public Employers
DATE: Jun 06, 2023

Jewel Nirschl worked for Zachary and Jacquelynn Schiller as a nanny from 2017- March 2020, when she was terminated.  Nirschl then brought several wage and hour claims against the Schillers, as well as a claim for defamation.  In an effort to resolve the issues, the Schillers hoped Nirschl would sign a release for all potential claims in exchange for a severance payment.  When Nirschl declined, Zachary requested help from Alice Fox, the owner of the agency that placed Nirschl with the Schillers.  In doing so, Nirschl alleges they defamed her by falsely and defamatorily claiming she falsified time and expense records, verbally assaulted the minor child by referring to him with vulgarity, violently shaking the minor child after he had soiled his diaper, and failing to disclose that she was in a car crash with the minor child in the car.

After Nirschl filed her complaint for defamation, the Schillers moved to strike it under California’s anti-SLAPP law.  The Anti-SLAPP law was designed to “combat lawsuits designed to chill the exercise of free speech and petition rights”. The anti-SLAPP procedure involves two steps: First, the Schillers had the burden of establishing that the lawsuit’s claims were based on activity protected by the statute.  If that burden is satisfied, the burden then shifts to Nirschl to demonstrate that each challenged claim is based on protected activity is legally sufficient and factually substantiated.

The Schillers argued that anti-SLAPP applied because the allegedly defamatory statements “arose in the context of an attempt by Mr. Schiller to settle contemplated litigation.” Conversely, Nirschl argued the allegedly defamatory statements were made as part of an effort to obtain a severance agreement before actual litigation was proposed or imminent, and therefore the action was not subject to the anti-SLAPP law, nor were the statements protected by the litigation privilege.

The trial court denied the anti-SLAPP motion, finding that the Schillers failed to demonstrate that the alleged defamatory statements had been made in the course of pre-litigation discussions.  Specifically, Mr. Schiller was not contemplating litigation when he reached out to Ms. Fox for assistance, and Nirschl had not done anything to cause the Schillers to believe otherwise.  On appeal, the Court of Appeal affirmed.

The Court of Appeal also disagreed with the Schillers’ contention that settlement negotiations before initiation of litigation are protected by anti-SLAPP.  The Court held that it depends on context.  The Court declined to interpret anti-SLAPP laws so broadly as to apply to any statement that involves potential litigation, as almost any dispute could potentially lead to, and so could be argued to be in “anticipation” of, litigation.  In this case, the Court found the statements at issue were part of a negotiation for a severance payment and release that could have been resolved without a lawsuit before litigation was ripe, or even threatened.  Therefore, Nirschl’s defamation claim did not arise from protected activity, and anti-SLAPP did not apply.

Nirschl v. Schiller, 2023 WL 3334959 (Cal. Ct. App.).

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