Appeals and Writs

• Publication year: 2019
• Author: By Paul Killion, Katy Graham, Greg Wolff, Dean Bochner, Matthew Scherb, Bryce Young, and Julia Shear Kushner

Appeals and Writs

By Paul Killion, Katy Graham, Greg Wolff, Dean Bochner, Matthew Scherb, Bryce Young, and Julia Shear Kushner

California Supreme Court Practice and Procedure

A 16-month vacancy on the state's high court was filled when Justice Joshua A. Groban joined the Court in 2019. The Court resolved much of its backlog with remarkable consensus. Among the significant cases decided by the California Supreme Court in 2019 were the following:

Anti-SLAPP Clarified

In a series of unanimous decisions, the Court cleared up several questions about anti-SLAPP, the procedural screening device for meritless lawsuits that target free speech or petitioning activities.¹ Under the anti-SLAPP statute, a complaint is subject to a special motion to strike if it arises from an act in furtherance of the person's constitutional right of petition or free speech "in connection with a public issue."² If the defendant demonstrates that the complaint arises from such an act, the complaint will be stricken unless the plaintiff demonstrates a probability of prevailing on the merits.³ In 2019, the Court considered whether commercial speech can ever merit anti-SLAPP protection, whether employment discrimination cases are exempt from anti-SLAPP screening, and what evidence a court may consider to determine a probability of prevailing on the merits.

Commercial Speech—Not Necessarily Exempted. In Filmon.Com Inc. v. DoubleVerify Inc.,⁴ the Court overruled authority categorically exempting commercial speech from anti-SLAPP protection.⁵ The Court also announced a two-part test for deciding whether a statement is made in furtherance of the right to free speech in connection with a public issue within the meaning of the anti-SLAPP statute's catchall provision.⁶

A web entertainment company, FilmOn, alleged that a web tracking company disparaged it in reports to paying clients, who were thus discouraged from advertising on its websites.⁷ The reports touched on matters of public interest—pornography and copyright infringement—and were commercial, confidential, and not intended to enter the public sphere.⁸ The trial court granted an anti-SLAPP motion and the Court of Appeal affirmed, finding that the reports were acts in furtherance of the tracking company's free speech rights. Contrary appellate authority had previously held that purely commercial speech is never entitled to anti-SLAPP protection.⁹

The Supreme Court granted review and rejected both approaches. The Court held that, "[s]ome commercially oriented speech will, in fact, merit anti-SLAPP protection,"¹⁰ but the speech must contribute to the public discussion.¹¹ It is not enough that the content refer to a public issue. "The travails of the lower courts demonstrate that virtually always, defendants succeed in drawing a line — however tenuous — connecting their speech to an abstract issue of public interest."¹²

To solve this problem, the Court articulated a two-part test that requires courts to look at both content and context to determine whether a statement is made in furtherance of the right to free speech in connection with a public issue.¹³ First, the court reviews the statement's content to consider what public issue is implicated. Second, the court reviews the statement's context to consider "what functional relationship exists between the speech and the public conversation."¹⁴ Contextual factors such as speaker, audience, and purpose should be considered to determine if the statement contributes to the public conversation.¹⁵ The commercial nature of a statement is just one contextual factor. One sub-category of commercial speech—comparative advertising—is statutorily exempt from protection under the anti-SLAPP statute, but other commercial statements are eligible for protection if their content and context bring them within the statute's catchall provision.¹⁶

Employment Discrimination—Not Necessarily Exempted. In Wilson v. Cable Network, Inc.¹⁷ the Supreme Court also considered the nature of protected activity, this time addressing "a growing divide" over whether complaints that allege discriminatory or retaliatory employment actions are subject to anti-SLAPP screening.¹⁸

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CNN terminated a journalist after accusing him of plagiarism. The journalist claimed CNN's reason was pretextual, and sued alleging employment discrimination and retaliation based on his race and his decision to take paternity leave, among other things.¹⁹ The trial court granted CNN's anti-SLAPP motion but the Court of Appeal reversed, following a line of authorities that held the anti-SLAPP statute does not apply to actions for employment discrimination and retaliation because those illicit motives are never a valid exercise of First Amendment rights.²⁰ The Supreme Court rejected that approach, concluding the focus should be on whether the alleged actions are protected, not the motives behind the actions.

The Court held that if the "complained-of adverse action" is an act in furtherance of a defendant's speech or petitioning rights, then anti-SLAPP protections apply, regardless of the illicit motives a plaintiff alleges.²¹ The defendant must demonstrate the activity underlying plaintiff's claim qualifies for protection and that activity supplies one or more elements of the claim.²² It is not the defendant's burden to disprove illicit motive.²³ That is an issue for the plaintiff to address when establishing a probability of prevailing on the merits. The Court concluded that the journalist's termination claims were subject to anti-SLAPP screening because CNN presented evidence that it terminated him to protect its journalistic integrity and its ability to participate credibly in the discussion of public matters, in furtherance of its speech rights.²⁴ The journalist's other claims were not subject to anti-SLAPP protection because they were staffing decisions and speech concerning an individual not arising from protected activity.

The Court encouraged trial courts to permit specified discovery where appropriate²⁵ to mitigate concerns about the "particular difficulties for discrimination and retaliation plaintiffs, whose claims depend on assertions of motives that are peculiarly within the defendant's knowledge," and to "remain mindful that the anti-SLAPP statute was adopted to end meritless suits targeting protected speech, 'not to abort potentially meritorious claims due to a lack of discovery.'"²⁶

Rules For Determining Probability of Prevailing Clarified. In Sweetwater Union High School District v. Gilbane Building Co.,²⁷ the Supreme Court decided what evidence a court may consider to determine probability of prevailing on the merits of a claim. The anti-SLAPP statute states that "the court shall consider the pleadings, and supporting and opposing affidavits."²⁸ In Sweetwater, the plaintiff offered former grand jury testimony and change of plea forms from a related criminal case, none of which were "pleadings" or "affidavits," but all of which were given under oath and under penalty of perjury. The Court held the evidence was admissible for purposes of the anti-SLAPP hearing, even though the plaintiff did not demonstrate the witnesses were unavailable.

First, any statute that authorizes consideration of "affidavits" also authorizes consideration of written declarations, under the general provisions of Code of Civil Procedure section 2015.5.²⁹ Second, where "declarations" may be considered, so too may be "statements that are the equivalent of affidavits and declarations because they were made under oath or penalty of perjury in California."³⁰ Whether the content of the declarations or equivalent evidence must be admissible at trial without further foundation depends on the motion. The statute governing summary judgment motions requires that the evidence considered must be "admissible at trial."³¹ But anti-SLAPP motions are heard before discovery is conducted, and the evidence need only be potentially admissible.³² Thus, for an anti-SLAPP hearing, evidence may be considered "if it is reasonably possible the evidence set out in supporting affidavits, declarations or their equivalent will be admissible at trial."³³ The Court reasoned that before discovery is conducted, it "may not be practicable for a plaintiff to obtain declarations from various witnesses."³⁴ The Court found it "doubtful that the Legislature contemplated dismissal of a meritorious suit for want of declarations largely duplicating available evidence."³⁵

Government Tort Claims Act Immunity Provision Is an Affirmative Defense

Ronald Reagan was president when the Court of Appeal held in McMahan's of Santa Monica v. City of Santa Monica that a city's absolute immunity from liability resulting from the condition of firefighting equipment or facilities is not a fundamental jurisdictional limitation, but an affirmative defense that may be forfeited if not timely raised.³⁶ But several subsequent Court of Appeal decisions held to the contrary that governmental immunity is jurisdictional and cannot be forfeited.³⁷ This term, the California Supreme Court held in Quigley v. Garden Valley Fire Protection Dist.³⁸that McMahan's had been correct all along—governmental tort immunity is not a fundamental jurisdictional limitation. The court approved the decision in McMahans and disapproved seven contrary decisions.³⁹

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Rules for Sworn Statements in Limited Civil Cases

In limited civil cases, a sworn written statement may sometimes be admitted in lieu of live witness testimony. Code of Civil Procedure section 98, subdivision (a), permits an affidavit or declaration to be admitted into evidence if "a copy has been served on the party against whom it is offered at least 30 days before trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place . . . ."

In Meza v. Portfolio Recovery Associates, LLC,⁴⁰ the California Supreme Court answered the following certified...