California’s Anti-SLAPP Statute

In my last post, I discussed defamation and its context in the workplace. This week I want to touch upon a statute that often goes hand-in-hand with defamation– California’s anti-SLAPP law. An anti-SLAPP motion is one frequently brought in the context of a defendant faced with a defamation lawsuit.

A strategic lawsuit against public participation, or “SLAPP”, is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with costs of legally defending a lawsuit until they essentially abandon their stance. Many jurisdictions, including California, have banned such lawsuits on the basis that they impede free speech protected under the U.S. and California constitutions.

Passed in 1992, and codified in Code of Civil Procedure sections 425.16 through 425.18, California’s anti-SLAPP statute presents a mechanism to defendants to strike potentially meritless causes of action early on in litigation while obtaining a mandatory fee award. If used effectively, it can be a powerful litigation tool.

In considering an anti-SLAP motion, a court will engage in a two-part inquiry. First, the court will consider whether the moving party has demonstrated that some cause of action against it arises from protected activity. If the moving party is successful, the burden shifts to the nonmoving party to demonstrate a probability of prevailing on that cause of action. If the nonmoving party is unable meet that burden, then the cause of action is stricken and fees are awarded to the prevailing moving party.

Code of Civil Procedure section 425.16(e) divides “protected activity” into four categories. The first two categories include speech or petitioning activity that either occur in or are made “in connection with” legislative, executive, or judicial proceedings. The third category addresses statements made in certain other public forums relating to “an issue of public interest.” Finally, the fourth category serves as a sort of catchall encompassing various other forms of speech or petitioning activity “in connection with a public issue or an issue of public interest.”

California case law has expanded this definition to include a seemingly endless variety of protected conduct. For example, the filing of a right-to-sue notice (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67), statements made during grievance procedures created by state law (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1400), and statements made in peer-review proceedings established by state law (Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 198) have been found by California courts to fit within the types of legislative, judicial, executive, and other “official proceedings” within which conduct may constitute protected activity. In addition, statements made outside of such proceedings related to homeowners’ association governance (see Ruiz v. Harbor View Community Ass’n (2005) 134 Cal.App.4th 1456, 1469– 1470), and warnings of fraud (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 899–900) have also been found to constitute protected activity.

The second prong of the analysis – demonstrating a likelihood of prevailing – operates to some degree like a motion for summary judgment in reverse, wherein the plaintiff must essentially prove its case before the trial, and, in most cases, before discovery.

Perhaps most importantly, Code of Civil Procedure section 425.16(c)(1) mandates a fee award to a prevailing anti-SLAPP movant. The impact of this provision can quickly change the shape of litigation in a substantial way by quickly creating circumstances under which a plaintiff may be pressured to settle or dismiss remaining claims in lieu of the leverage created by a large fee award.

Despite the availability of fee awards, movants should nevertheless exercise caution before filing an anti-SLAPP motion. Section 425.16(c)(2) also makes mandatory an award of fees to a nonmoving party if a court finds a motion “is frivolous or is solely intended to cause unnecessary delay.” This is suitably also known as the “SLAPP-back” portion of the statute.

If used in the proper context, California’s anti-SLAPP statute can be a powerful litigation device where protected activity is implicated. However, any litigant should be careful to bring such claims only where they are truly warranted under the law. The advice of a prudent attorney familiar with the intricacies of the anti-SLAPP law and its various mechanisms will help you consider whether this statute will apply to your case.

Contact the attorneys at Khashayar Law Group and LOKK Legal for more information.

Khashayar Law Group
(760) 806-4388

LOKK Legal
(858) 472-9700

Please stay tuned for next week’s follow-up post regarding California’s Anti-SLAPP statute, one that was enacted to protect the First Amendment rights of Californians, providing protection from meritless suits designed to censor legitimate free speech. Anti-SLAPP claims often arise in the context of a defamation lawsuit.