When They Don't Clap for Anti-slapp
| Publication year | 2022 |
By Ryan J. Szczepanik* and Ciarán O'Sullivan, Esq.**
MCLE Article
A "Strategic Lawsuit Against Public Participation," or "SLAPP" suit, is a court filing complaining of injury arising from court petitioning or free speech activity. A SLAPP suit is controversial. Its intent often is to intimidate perceived adversaries by burdening them with the expense of a legal defense until they are silenced.1 Critics of SLAPP suits cheered when California Code of Civil Procedure section 425.16 was enacted in 1992. Section 425.16 allows a special motion to strike a SLAPP suit. A section 425.16 special motion to strike, called an "anti-SLAPP" motion, is a powerful tool that litigators can wield against SLAPP suits.
Over the years, the broad reach of the anti-SLAPP motion has itself generated controversy. Litigators, as they often do, have pushed the envelope of this powerful tool, threatening anti-SLAPP motions against many lawsuits that the Legislature never intended to prohibit. In short, the tool intended to curb litigation abuse has become the subject of abuse.
Reigning in the application of anti-SLAPP motions has become a hot topic in trust and estate litigation. For the reasons explained below, the use of anti-SLAPP motions in trust and will contest proceedings should be prohibited.
Citizens have constitutionally protected rights to freedom of speech and to petition for the redress of grievances.2 A SLAPP suit is a court filing complaining of injury resulting from another's exercise of those rights, or "targeting" a person for the exercise of those rights.3 Filing any legitimate lawsuit is, ipso facto, an exercise of the filer's right to petition the courts and/or of their free speech rights. Petitioning the courts is not the only type of activity that has subjected the participant to SLAPP suits.
"The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants' continued political or legal opposition to the developers' plans."4 The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance, and intentional infliction of emotional distress.5
SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective.6
As one commentator described it, "while SLAPP suits 'masquerade as ordinary lawsuits' the conceptual features which reveal them as SLAPP's are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so."7 One court has described SLAPP suits as "one brought to intimidate, and for purely political purposes."8
In response to what was perceived as a growing nationwide problem of such lawsuits, in 1992 the California Legislature enacted Code of Civil Procedure section 425.16. The Legislature identified in the statute the policy reasons underlying its enactment:
The Legislature finds and declares 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 the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.9
To remedy this perceived abuse, section 425.16 allows for a special motion to strike a SLAPP suit—commonly referred to as an "anti-SLAPP" motion:
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
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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.10
The acts that the anti-SLAPP statute protects - i.e., acts "in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue," are those that arise from:
- any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
- 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,
- 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
- 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.11
This definition of protected acts is intentionally broad.12The "arising from" requirement is nevertheless not always easily met. The mere fact an action was filed after protected activity took place does not mean it arose from that activity.13Rather, 'the act underlying the plaintiff's cause' or 'the act which forms the basis for the plaintiff's cause of action' must itself have been an act in furtherance of the right of petition or free speech."14 The courts have construed the statute as protecting statements made by persons before regulatory bodies,15 malicious prosecution claims against attorneys and their clients,16 statements made by a victim of a crime to the police,17 a libel action against someone based on his political contributions,18 and statements by a politician in a libel action arising from defamatory statements in a campaign mailing.19
The courts employ a two-pronged analysis to determine whether to grant an anti-SLAPP motion and dismiss an action that arises from public participation and/or the exercise of free speech. Under the first prong, the moving party must show that the complaint alleges protected speech or conduct, and that the complaint arises from such protected speech or conduct. The moving party must make the showing by reference to the pleadings themselves, along with any supporting declarations, and matters that may be judicially noticed.20 The moving party does not need to demonstrate that the party that brought the SLAPP suit intends to chill speech, or that the complaint in fact chilled speech.21
For example, in Park v. Board of Trustees of Cal. St. Univ., plaintiff was a college professor who sued for discrimination in the tenure determination process, alleging as evidence of the discrimination certain prejudicial comments made by the dean during the tenure process. The court denied the college's anti-SLAPP motion, holding that even though making discriminatory comments is protected free speech activity, plaintiff's claim arose from the discrimination itself which is not protected activity. A cause of action for discrimination could exist without the allegations related to the dean's comments.22
Under the second prong, if the moving party makes the required showing, the burden shifts to the party that brought the SLAPP suit to demonstrate a "probability of success" on the merits of their claim.23 This step is akin to a summary judgment procedure:
The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law.24
As with summary judgment, the party that brought the SLAPP suit must meet their burden by using only evidence that is admissible at trial,25 and they must be able to overcome substantive defenses. For example, a public figure suing for defamation must show actual malice.26 If the party that brought the SLAPP suit cannot show a probability of success, the court must dismiss that party's suit.27
An anti-SLAPP motion may be filed within 60 days of the service of the complaint, cross-complaint, or petition, or, in the court's discretion, at any later time upon terms the court deems proper.28 The anti-SLAPP motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.29
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Upon the filing of a notice of an anti-SLAPP motion, all discovery proceedings in the action are stayed.30 The stay remains in effect until notice of entry of the order ruling on the anti-SLAPP motion.31 The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding the stay.32
The party that files the anti-SLAPP motion, if successful on the motion, is entitled to recover their attorney's fees and costs from the party opposing the motion.33 In contrast, the party opposing the anti-SLAPP motion is entitled to recover their attorney's fees and costs from the party that filed the motion only if the court finds that the motion is frivolous or is solely intended to cause unnecessary delay, pursuant to California Code of Civil Procedure, section 128.5.34
An order granting or denying an anti-SLAPP motion...
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