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

Attorney at Law

Firm Name

Address

Telephone Number

Facsimile Number

Attorney for Defendant ___________

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ________________

DOE,

Plaintiff Case No. ____________

MEMORANDUM OF POINTS

AND AUTHORITIES IN

v. SUPPORT OF SPECIAL MOTION

TO STRIKE PLAINTIFF’S

ROE COMPLAINT AS SLAPP SUIT

[CODE CIV. PROC. § 425.16]

Defendant Date: ________________________

_______________________________________/ Time: ________________________

Dept: ________________________

Complaint Filed:______________

I.

INTRODUCTION AND SUMMARY OF ARGUMENT

This is a special motion to strike as a “SLAPP”1 suit an action for [here identify causes of action sought to be stricken, e.g., malicious prosecution, abuse of process, interference with business relations, libel etc.] brought by plaintiffs against _________________________. According to our Supreme Court, such causes of action are subject to a motion to strike under Code of Civil Procedure section 425.16 because they have a chilling effect on the valid exercise of constitutional rights of freedom of speech. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) Given this fact, the anti-SLAPP statute requires plaintiffs to demonstrate by admissible evidence that they have a reasonable probability of prevailing on the merits of their claims. Plaintiffs cannot do so because [here identify essential element(s) of plaintiffs case that cannot be established, or absolute defense to action].

Example:

“Plaintiff cannot demonstrate an essential element of this malicious prosecution claim because probable cause to file the underlying complaint existed as matter of law. As a result plaintiffs cannot establish an essential element of their malicious prosecution claim. Accordingly, this lawsuit should be stricken as a SLAPP.”

¹ “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)

II.

SUMMARY OF FACTS

This action [here identify nature of challenged action, i.e., malicious prosecution and abuse of process] involves [here set forth the basic facts giving rise to the instant complaint].

Note: It is critically important for each factual statement to be supported by reference to admissible evidence. Thus, each factual statement should include a supporting citation to an admissible declaration, authenticated documents, authenticated deposition testimony of a party, or matters of which the court can take judicial notice.

Example:

“On or about March 10, 2003, Defendant Fred Smith (“Smith”) entered into a Residential Purchase Agreement with Michael Jones (“Jones”) to purchase a home located at 1100 River Street in Los Angeles, California for $250,000. (Declaration of Fred Smith [“Smith Decl.”], ¶ 2.) Escrow was to close in 35 days. (Id.) When Smith did not complete the escrow, Jones filed a lawsuit against Smith. (See Exhibit “E” to defendant’s Request for Judicial Notice [“RFJN”].) The Complaint contained several causes of action, including claims for breach of contract, fraud, and interference with prospective economic advantage.” (Complaint, ¶ 1, Exhibit “F” to RFJN.)

III.

SLAPP SUITS

A. The Anti-SLAPP Statute’s Two Step Process For Determining Whether An Action Is A SLAPP

In 1992, the California Legislature enacted Code of Civil Procedure section 425.16 in response to its perception “that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.” (Code Civ. Proc., § 425.16(a); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 817.) Such lawsuits have earned the acronym “SLAPP,” which stands for Strategic Lawsuits Against Public Participation. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 813.)

Section 425.16, subdivision (b)(1) provides:

A cause of action 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.

The court analyzing an anti-SLAPP motion engages in a two-pronged analysis. The moving party has the initial burden of establishing that the action being challenged qualifies for treatment under section 425.16. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365.) In this respect, the Legislature has mandated that “this section shall be construed broadly.” (Code Civ. Proc., § 425.16(a).) In this regard, the court must determine whether the moving party has met his or her burden of showing that the plaintiff’s lawsuit “arises from any act of [the defendant] in furtherance of the person’s constitutionally protected ‘right of petition or free speech . . . .’” (Code Civ. Proc. § 425.16(b)(1); Wilcox v. Superior Court, supra, 27 Cal.App.4th at 819-821.)

[Here set forth why the challenged action fits within one of the statutory classifications for anti-SLAPP treatment.]

Example in an Action for Malicious Prosecution and Abuse of Process:

“The California Supreme Court has squarely held that malicious prosecution actions are subject to special motions to strike under section 425.16. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728.) Indeed, the holding in Jarrow Formulas is in accord with the holdings of each of California’s Courts of Appeal to consider the issue. (See, e.g., White v. Lieberman...