Practice and Discovery Under the Anti-SLAPP Statutes

• Author: Kevin R. Culhane
• Pages: 302-319

23-302

Chapter 23

Practice and Discovery Under

the Anti-SLAPP Statutes

§2300 Introduction

§2310 Substantive Requirements

§2320 Procedural Requirements for a Motion to Strike Under the Anti-SLAPP Statute

§2330 Practitioner Checklist - Special Motion to Strike Under C.C.P. §425.16

Forms

§2300 Introduction

§2310 Substantive Requirements

§2320 Procedural Requirements for a Motion to Strike Under the Anti-SLAPP Statute

§2321 Anti-SLAPP Motion to Strike - Time Limits for Filing

§2322 Anti-SLAPP Motion to Strike - Time Limits for Hearing

§2323 Anti-SLAPP Motion to Strike - Automatic Stay of Discovery

§2324 Limitations on Amendment of Pleadings

§2325 Orders Granting or Denying Motion to Strike Are Appealable Orders

§2326 Entitlement to Attorney Fees

§2330 Practitioner Checklist - Special Motion to Strike Under C.C.P. §425.16

Forms

Sample Pleading - Notice of Special Motion to Strike

Sample Pleading - Memorandum of Points and Authorities in Support of Special Motion To Strike

Sample Pleading - Order Granting Special Motion to Strike

Sample Pleading - Memorandum of Points and Authorities in Support of Motion for Award of Reasonable

Attorneys’ Fees

23-303 practIce & dIscoVery under antI-slapp statutes §2310

§2300 Introduction

As most practitioners are aware, in recent years numerous state legislatures have enacted statutory provisions

designed to identify and dismiss lawsuits seeking to impose liability for conduct undertaken in furtherance of that

defendant’s free speech or petition rights. Under these statutes, such cases are identified by the SLAPP acronym as

Strategic Lawsuits Against Public Participation. The anti-SLAPP statutes provide a mechanism to identify those

lawsuits which are not brought to vindicate any legal right, but rather to deplete the opponent’s resources for a suf-

ficient length of time to accomplish the plaintiff’s underlying objective. See Rezec v. Sony Pictures Entertainment,

Inc. (2004) 116 Cal.App.4th 135, 139.

In general, these statutes provide a methodology to: (1) stay discovery and other interim proceedings such that the merits

of the plaintiff’s case can be examined at an early stage with a minimum of cost and expense; (2) evaluate the merits of the

plaintiff’s case; (3) strike the plaintiff’s complaint (or the offending portions thereof) if it appears that the plaintiff has no

probability of success on the merits; and (4) provide a fee-shifting mechanism such that the successful anti-SLAPP defen-

dant is entitled to be reimbursed for attorneys’ fees and costs incurred in exposing the SLAPP nature of the plaintiff’s claim.

Because the filing of an anti-SLAPP motion to strike both (1) stays all discovery; and (2) has direct applicability

to the malicious prosecution and business interference torts examined at length in this book, the anti-SLAPP motion

to strike is analyzed in detail in this chapter. Accordingly, the materials that follow analyze the substantive and

procedural requirements that apply to a motion to strike plaintiff’s complaint as a Strategic Lawsuit Against Public

Participation. This chapter also includes a practice checklist and form points and authorities for use in connection

with motions to strike under anti-SLAPP statutes.

§2310 Substantive Requirements

The relatively recent phenomenon of SLAPP cases seeking to impose liability for conduct protected by free speech

and petition rights has generated a widespread legislative response, and nearly half of American jurisdictions have

enacted anti-SLAPP procedures. The California statute is exemplary in this regard, and accordingly it is analyzed in

this chapter. Obviously, practitioners should consult their own state statutes in order to accurately determine whether

a given lawsuit is amenable to anti-SLAPP treatment.

The California anti-SLAPP statute is found in Code of Civil Procedure section 425.16. That section provides in

pertinent part:

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 or 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. (Code

Civ. Proc. §425.16(b)(1).)

The statute anticipates that before a given lawsuit is subject to the special motion to strike, the moving party must

establish that the lawsuit is eligible for anti-SLAPP treatment, i.e., the action seeks to impose liability for an act in

furtherance of the (defendant’s) right of petition or free speech. The statute contains operative definitions to provide

that an eligible lawsuit is one that seeks to impose liability for: (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. (Cal. Code Civ. Proc. §425.16(e).)

The statute specifically provides that these terms shall be “broadly construed”; the case law holds that eligibility

for anti-SLAPP treatment focuses on the nature of the challenged conduct rather than upon the manner in which the

plaintiff frames his or her complaint. Stated otherwise, the definitional focus is not the form of the plaintiff’s cause

of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity

constitutes protected speech or petitioning. Navellier v. Sletten (2002) 29 Cal.4th 82, 92.