In 2007, the California Legislature took action to slow the proliferation of certain types of lawsuits filed in California courts. It enacted the so-called anti-SLAPP statute, effective January 1, 2008. The term SLAPP refers to “Strategic Lawsuits Against Public Participation.”
As the Legislature expressed in the first sentence of the anti-SLAPP statute: “The Legislature finds and declares there has been a disturbing increase in lawsuits primarily to chill constitutional rights of freedom of speech and petition for the redress of grievances.” Code Civ. Proc. Sec. 425.16(a). The statute further expresses the Legislature’s belief that, “[I]t 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.” Id.
The anti-SLAPP statute contains a two-part test to determine whether an action is a SLAPP suit subject to a special motion to strike. The first part of the test is whether the action is a SLAPP suit; the second part decides whether, if it is a SLAPP suit, it may nonetheless survive the motion to strike, because the plaintiff has established a probability of prevailing on the merits of the Complaint. Once the court determines the first prong of the statute has been met, the plaintiff must provide the court with sufficient evidence to permit it to determine whether there is a probability the plaintiff will prevail on his claims.
To be protected by the anti-SLAPP statute, the conduct on which the challenged claims are based does not have to constitute free speech. Instead, the conduct need only help to advance or assist a person in the exercise of his free speech rights.
As used in the anti-SLAPP statute, an act in furtherance of a person’s right of petition or free speech in connection with a public issue includes: “(1) a written or oral statement or writing made before a . . . Judicial proceeding; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . Judicial body . . . ; (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 free speech in connection with a public issue or an issue of public interest.” Code Civ. Proc. Sec. 425.16(e).
These four clauses operate independently; a party bringing an anti-SLAPP motion need only show that one of them applies.
The only elements the defendant needs to establish to invoke the protection of the SLAPP statute is that the plaintiff’s lawsuit arose from an act on the part of the defendant in furtherance of the defendant’s right of petition or free speech. From that fact, the court may “presume” the purpose of the lawsuit was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability that he will succeed on the merits at trial.
The issue which typically arises when a defendant files a motion to strike the Complaint under the anti-SLAPP statute is whether the plaintiff’s claims “arose from” protected activity. The question is whether the act underlying the plaintiff’s claims, or the act which forms the basis for those claims was itself an act in furtherance of the defendant’s right of petition or free speech.
On that issue, consider two examples. The first is a personal injury action brought by the plaintiff, asserting a claim of negligence against the defendant. The plaintiff pedestrian’s claim is that the defendant acted carelessly, ran a red light and hit the plaintiff, causing him bodily injuries, for which the plaintiff seeks money damages. The negligence cause of action asserted by the plaintiff “arises from” the defendant’s negligence and not from an act in furtherance of the defendant’s right of petition or free speech.
A second example is the plaintiff’s lawsuit asserting a claim of malicious prosecution against the defendant. In that action, the plaintiff alleges that the defendant sued the plaintiff, alleging the plaintiff engaged in wrongful conduct, without a reasonable basis for so asserting. Whether or not the plaintiff’s malicious prosecution action has merit, it is clear that the plaintiff’s malicious prosecution claim “arises from” the defendant’s exercise of his right of petition and free speech, namely, his petition to the court to provide him a remedy for the plaintiff’s alleged wrongful conduct.
If the defendant provides sufficient evidence that would enable a judge or jury to determine that the plaintiff’s lawsuit arose from an act in furtherance of the defendant’s right of petition or free speech, then the burden shifts to the plaintiff to establish a probability that he will prevail on his claims at trial. The plaintiff must then show that his complaint is supported by sufficient competent and admissible evidence that would permit a judge or jury to rule in his favor on his Complaint. If the plaintiff fails to meet this burden, the Complaint will be stricken and the case will be over. However, if the plaintiff makes a sufficient showing that would enable a judge or jury to rule in his favor at trial, the motion will be denied and the case will proceed as a normal litigation matter in court.
The granting or denial of a motion to strike under the anti-SLAPP statute is immediately appealable. If the motion is granted, the case is over, and once a case is over, the party who lost may appeal the trial court decision. If the motion is denied, the case would typically continue in the trial court until it was concluded by settlement or decision at trial. However, if the motion should have been granted, no further proceedings in the trial court should occur. Consequently, the defendant whose anti-SLAPP motion to strike is denied has no realistic remedy other than an immediate appeal.
For further information, feel free to contact the Law Office of William J. Tucker.