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vs. Virga
 Terminix Loses Anti-SLAPP

On March 29, 1998, my attorney filed the papers for a “Notice of Special Motion and Special Motion to Strike a Complaint as a SLAPP (Strategic Litigation Against Public Participation) Suit.”  I’ll bet Terminix was REALLY upset about this one since California may be the only state that has anti-SLAPP legislation.  The California Anti-SLAPP Foundation offers links to the following information:

  • Florida takes up anti-SLAPP bill
  • Indiana Senate passes anti-SLAPP bill
  • Maryland legislators' third try for anti-SLAPP bill
  • New Jersey legislators try again for anti-SLAPP bill

The anti-SLAPP hearing was held April 20, 1998, and the judge stated he would issue his ruling sometime that week.  It was a very long week.  On April 28, 1998, I received the judge’s ruling on our anti-SLAPP motion.  I won!!!  The judge’s Ruling on Special Motion to Strike states in part:

    Virga claims her conduct in publishing the web page was in furtherance of her constitutional right of free speech in that the published web page was made in a public form in connection with an issue of public interest or furtherance of her exercise of her first amendment rights in connection with a public issue or an issue of public interest.

    The court agrees.  The Internet is a place open to the public and/or is a public forum and enjoys full first amendment protection.  The dispute with Terminix is a consumer issue and is of public interest.

    Terminix has not shown a probability of prevailing at trial....  The motion by Virga is granted.

WOW!!!  Terminix actually failed in their attempt to abrogate my first amendment rights, and their defamation suit against me was thrown out!!!

Terminix did not file an appeal.  The facts did not change; and since they are a multi-BILLION dollar company, it certainly wasn’t for lack of money!

With the anti-SLAPP victory, I was granted attorney fees; however, the only recoverable fees are the attorney fees for the anti-SLAPP motion.  Here’s a kicker.  A hearing was automatically scheduled for Terminix to oppose the amount of the attorney fees.  They did not appear.  My attorney did appear; and, naturally, he charged for his time in court.  Now, it seems to me that at these “automatic” hearings, the losing party should appear and either oppose the amount or pay the judgment.  No, that’s too simple and not how it’s done.  My attorney must now file papers (at a fee, of course) to seek fulfillment of the judgment.

When I was notified of the ex parte motion filed by Terminix, I contacted the California Anti-SLAPP Foundation for assistance.  Among the advice I was given was to check my homeowner’s policy for coverage.  With only three days’ notice, I was more concerned with finding an attorney to represent me.  BIG mistake!  Had I followed the advice I was given, I would have saved thousands of dollars!  I have learned that yes, I was covered; however, insurance companies fight to avoid paying pre-tender fees.  They will only pay fees incurred from the date the claim was filed.  By the time I realized I could file a claim, this case was basically over.

In August, I received the court-ordered judgment check from Terminix for my anti-SLAPP attorney fees.  When I picked up the check from my attorney’s office, he told me his father had a little problem with Terminix.  He (the father) had told Terminix that before they came to his house, they needed to let him know so he could lock up his dog.  He received a bill for services rendered and called Terminix.  He told them that there was no way Terminix could have gone in his back yard to perform the services since no one had called him to lock up his Rotweiller, and the dog would have attacked anyone who entered the back yard.  The manager called him back and told him the technician had been unable to perform the services because there was a large dog in the back yard.  Duh!  Now, the question I have is, how many people have a large dog so they can know whether or not the services they are billed for were actually done?

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