Mcle Self-study: the Anti-slapp Statute: Much Worse, and Not as Bad, as You Think it Is

• Jurisdiction: California,United States
• Author: By John S. West
• Publication year: 2017
• Citation: Vol. 31 No. 4

MCLE Self-Study: The Anti-SLAPP Statute: Much Worse, and Not As Bad, As You Think It Is

By John S. West

John S. West is a partner at the law firm of Allred, Maroko & Goldberg. He represents employees in disputes from the pre-litigation stage through trial and appeal. Mr. West has succesfully argued numerous matters in the courts of appeal (state and federal) and before the California Supreme Court. He speaks to bar groups on employment law subjects and regularly contributes articles to legal publications.

If you are an employment lawyer who represents plaintiffs, you might assume that your ethical compass is all you need to steer away from entanglement in California's dreaded anti-SLAPP statute, Civil Procedure Code § 425.16. After all, your clients often assert claims under statutes such as the Fair Employment and Housing Act (FEHA), which reflects "the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination."¹ FEHA's public policy seems on its face inconsistent with the policy behind the anti-SLAPP statute, which "reflects the legislative recognition that SLAPP suit plaintiffs are not seeking to succeed on the merits but to use the legal system to chill the defendant's First Amendment rights."²

The Defendant's Motives: Important or Irrelevant?

The anti-SLAPP statute, however, may render your moral compass irrelevant. As will be shown, for purposes of determining whether the statute applies, the nature of the plaintiff's cause of action, no matter how noble, and his or her lack of any intent to chill the defendant's protected activity, are irrelevant. And, until recently, the defendant's motives in acting as alleged in the complaint, even evil motives, were also viewed as irrelevant for purposes of a court's determination of whether the statute applies.

A recent line of cases, however, indicates that a defendant's motives may be considered for purposes of determining whether a plaintiff's claim triggers § 425.16. That line of cases arose out of employment-based claims, and may reduce the scope of the statute's broad reach in the context of employment cases. Another line of cases, which stands for the proposition that the defendant's motives are irrelevant in determining if the statute has been triggered, has not been overruled, however. Under the circumstances, the best that can be safely said is that a split of authority has arisen, and that the trend is good for plaintiff's lawyers. In short, the anti-SLAPP statute is both much worse, and not as bad, as you may think it is.

The Starting Point: CCP Section 425.16

The statute, in all its complexity, is in the final analysis simply "a mechanism through which complaints that arise from the exercise of free speech rights 'can be evaluated at an early stage of the litigation process' and resolved expeditiously."³ The term "expeditiously" cannot be overemphasized. One court has gone so far as to describe the statute as intended to provide "a fast and inexpensive" way for defendants to obtain "dismissal of SLAPP's."⁴

Section 425.16 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."⁵ The statute is to be "broadly construed to encourage continued participation in free speech and petition activities."⁶

Motions under the statute are subject to a two-step analysis. First, the court decides whether the defendant has made a threshold showing that the plaintiff's cause of action arises from that defendant's protected activity. If the defendant meets that threshold, the court will then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.⁷ The issues are framed by the pleadings,⁸ and the court determines the motion based on "the pleadings, and supporting and opposing affidavits stating the facts."⁹

Think Before You Draft

Lawyers are accustomed to working under pressure. It would, however, be a mistake to look at an anti-SLAPP motion as just another motion on the calendar. When the statute applies, it requires a plaintiff to establish "a probability" of prevailing on a claim¹⁰ under very challenging circumstances. All discovery is automatically stayed when an anti-SLAPP motion is filed.¹¹ In addition, the statute normally requires the motion to be filed "within 60 days from service" and "heard no later than 30 days from notice of the hearing."¹²

While procedural challenges can often be overcome with hard work, the anti-SLAPP statute contains other unique risks and disadvantages for plaintiffs. First and foremost, a defendant who prevails on an anti-SLAPP motion "shall be entitled to recover his or her attorney's fees and costs."¹³ Conversely, a plaintiff who defeats such a motion can only recover fees and costs upon a showing that the motion "is frivolous or is solely intended to cause unnecessary delay."¹⁴ The translation, of course, is whenever an anti-SLAPP motion is filed, a plaintiff has a huge potential risk of liability for the defendant's fees and costs, while a defendant gets a virtual immunity from paying the plaintiff's fees and costs.

Any party unhappy with the outcome of an anti-SLAPP ruling has the right to appeal. It stands to reason that a plaintiff who loses a case or claim because of an anti-SLAPP motion would want, or be required, to appeal. The defendant whose motion has been denied, however, faces little practical risk of an attorney fee award, and therefore has an incentive to appeal no matter how small his chances of prevailing might be. Thus, one likely consequence of an anti-SLAPP motion is up to a year of delay at the option of the defendant.

The outcome of that kind of stacking of the deck against plaintiffs is arguably predictable. In a 2002 dissenting opinion (joined by Justices Baxter and Chin), former Supreme Court Justice Brown declared that "[t]he cure has become the disease—SLAPP motions are now just the latest form of abusive litigation."¹⁵

For all of these reasons, a plaintiff's attorney should start thinking about the possibility of an anti-SLAPP motion at the earliest possible time before filing suit. Focusing on the plaintiff's side of a lawsuit, our courts have held that "[n]othing in the statute itself categorically excludes any particular type of action from its operation."¹⁶ In the anti-SLAPP setting, courts must "disregard the labeling of the claim . . . and instead 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies.'"¹⁷Moreover, the statute applies even when the plaintiff has no intent whatsoever to chill a defendant's exercise of protected rights. In other words, a defendant who seeks dismissal of a claim under the anti-SLAPP statute is not required to demonstrate that the action was brought with an intent to chill that...