How to Effectively “SLAPP” Back
by Karen A. Feld on July 4, 2016
posted in Damages,
SLAPP stands for “strategic lawsuit against public participation” and is perfectly named. The whole point of the lawsuit is to intimidate people into submission. The goal is not necessarily to win the case; it is to make life so difficult and expensive that the defendant just gives up and goes away.
Many states, starting with California, have enacted protections against such lawsuits, recognizing that they infringe on someone’s freedom of speech and right to participate.
How do you know what a SLAPP lawsuit looks like?
California Code of Civil Procedure § 425.16 provides direction in defining a SLAPP lawsuit.
The statute provides that, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” It defines and “Act in furtherance” as:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
The first two definitions are pretty clear – a statement made in, or in connection with an issue under consideration by a legislative, executive, or judicial branch. Many states limit their anti-SLAPP statutes to these two definitions.
California expanded the definition of anti-SLAPP by including statements made in a public forum. There is an interesting qualification to a statement made in a public place – the issue has to be one of public interest. What is an issue of public interest?
As with pornography, the California Supreme Court stated that no formal standards are necessary because “judges and attorneys … will, or should, know a public concern when they see it.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1122).
A circular definition for “an issue of public interest” is “any issue in which the public is interested.’” Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894, 907.
How do you fight a SLAPP lawsuit?
In a normal case, when a complaint is filed, a defendant can file an answer or a demurrer which asks the court to dismiss the case or force the plaintiff to amend the Complaint. The limitation with a Demurrer is that the court has to assume all facts alleged in the Complaint are true. It cannot look to other facts, declarations, evidence, etc. to determine the truth. The truth is reserved for trial.
Similarly, you can file a Motion for Summary Judgment in an effort to throw out a case. As with a Demurrer, the court will not weigh the evidence to determine the truth. The easy way to defeat an MSJ is by showing there is a material issue of fact. When that happens, the truth is reserved for trial.
The Legislature recognized that leaving the “search for the truth” to the date of trial helps someone who filed a SLAPP lawsuit. The Legislature believed that the best way to fight a SLAPP lawsuit is to slap back. California’s anti-SLAPP legislation was passed in 1992. There is no federal anti-SLAPP, so some federal courts, including the 9th Circuit Court of Appeal, have allowed defendants to use the California statute in diversity cases.
The first sentence of California Code of Civil Procedure § 425.16 acknowledges the disturbing trend of lawsuit to chill free speech and petition for redress of grievances. It instructs that the statute is to be read broadly.
A person who believes they are being targeted by a SLAPP lawsuit (via a Complaint, Cross Complaint, or Petition) may file a special motion to strike within 60 days of service of the complaint, or later, with court permission.
Once the motion is filed, all discovery is stayed. The purpose for this is to hold down costs for all parties pending a final decision.
An order granting or denying the motion is appealable under California Code of Civil Procedure § 904.1. Immediate access to an appeal is a relatively new change. Before 1999, orders denying anti-SLAPP motions could only be reviewed by a writ until the proceedings in the trial court were complete. That defeated the legislative’s goal to end these lawsuits quickly. The Legislature then amended the statute to allow an immediate appeal.
Any person who files a Motion to Strike (or opposition), must provide a copy to the Judicial Council. The Judicial Council maintains a public record for three years and will provide copies of anti-SLAPP court filings on request.
The Special Motion to Strike is basically like a Motion for Summary Judgment in reverse. There is a split of authority as to whether the plaintiff opposing an anti-SLAPP motion has the burden to overcome the defendant’s affirmative defenses or whether the defendant has the burden of proof. The safe bet is to assume that your client has the burden.
In a Motion to Strike, the moving party must show that the statute applies to the lawsuit – that their freedom of speech and right to petition is being infringed. The moving party can submit supporting evidence (unlike a demurrer and an MSJ). The opposing party will file an opposition and provide their supporting evidence. The judge is permitted to weigh the evidence and make a determination based on competing facts.
What are the Penalties?
California Code of Civil Procedure § 425.16 allows a prevailing defendant on a special motion to strike to recover attorney’s fees and costs. On the flipside, if the court determines that the special motion to strike is frivolous or for the purposes of delay, it can award attorney fees and costs to the plaintiff pursuant to Code of Civil Procedure §128.5.
The exceptions to a defendant obtaining attorneys fees are if the cause of action is based on a Public Records Act request (Government Code § 6259), Open Meeting Laws (Government Code §§ 11130, 11130.3), and the Brown Act (Government Code §§ 54960, 54960.1).
An anti-SLAPP motion is a very powerful weapon that can strike down a lawsuit very early in the litigation process and can keep down costs.
