There are just three SLAPP statutes, 425.16, 425.17 and 425.18, and they continue to be a work in progress as the Legislature works out the bugs. Indeed, the statute requires that any party filing or opposing an anti-SLAPP motion must send a copy of the face page of the court document to the Judcial Council, so the use of these statutes can be monitored.
California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.
California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse of the anti-SLAPP statute (CCP § 425.16). Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct. Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.
(b)(1)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.
(2)In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3)If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
(c)In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
(d)This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.
(e)As used in this section, "act 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" includes: (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; (4) 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.
(f)The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The 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.
(g)All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.
(h)For purposes of this section, "complaint" includes "cross-complaint" and "petition," "plaintiff" includes "cross-complainant" and "petitioner," and "defendant" includes "cross-defendant" and "respondent."
(i)An order granting or denying a special motion to strike shall be appealable under Section 904.1.
(j)(1)Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.
(2)The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.
(a)The Legislature finds and declares that there has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16. 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 or Section 425.16.
(b)Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:
(1)The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney's fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision.
(2)The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.
(3)Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter.
(c)Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:
(1)The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services.
(2)The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.
(d)Subdivisions (b) and (c) do not apply to any of the following:
(1)Any person enumerated in subdivision (b) of Section 2 of Article I of the California Constitution or Section 1070 of the Evidence Code, or any person engaged in the dissemination of ideas or expression in any book or academic journal, while engaged in the gathering, receiving, or processing of information for communication to the public.
(2)Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation.
(3)Any nonprofit organization that receives more than 50 percent of its annual revenues from federal, state, or local government grants, awards, programs, or reimbursements for services rendered.
(e)If any trial court denies a special motion to strike on the grounds that the action or cause of action is exempt pursuant to this section, the appeal provisions in subdivision (j) of Section 425.16 and paragraph (13) of subdivision (a) of Section 904.1 do not apply to that action or cause of action.
(a) The Legislature finds and declares that a SLAPPback is distinguishable in character and origin from the ordinary malicious prosecution action. The Legislature further finds and declares that a SLAPPback cause of action should be treated differently, as provided in this section, from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature's intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP (strategic lawsuit against public participation) litigation and by its restoration of public confidence in participatory democracy.
(b)For purposes of this section, the following terms have the following meanings:
(1)"SLAPPback" means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.
(2)"Special motion to strike" means a motion made pursuant to Section 425.16.
(c)The provisions of subdivisions (c), (f), (g), and (i) of Section 425.16, and paragraph (13) of subdivision (a) of Section 904.1, shall not apply to a special motion to strike a SLAPPback.
(d)(1)A special motion to strike a SLAPPback shall be filed within any one of the following periods of time, as follows:
(A)Within 120 days of the service of the complaint.
(B)At the court's discretion, within six months of the service of the complaint.
(C)At the court's discretion, at any later time in extraordinary cases due to no fault of the defendant and upon written findings of the court stating the extraordinary case and circumstance.
(2)The 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.
(e)A party opposing a special motion to strike a SLAPPback may file an ex parte application for a continuance to obtain necessary discovery. If it appears that facts essential to justify opposition to that motion may exist, but cannot then be presented, the court shall grant a reasonable continuance to permit the party to obtain affidavits or conduct discovery or may make any other order as may be just.
(f)If the court finds that a special motion to strike a SLAPPback is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
(g)Upon entry of an order denying a special motion to strike a SLAPPback claim, or granting the special motion to strike as to some but less than all causes of action alleged in a complaint containing a SLAPPback claim, an aggrieved party may, within 20 days after service of a written notice of the entry of the order, petition an appropriate reviewing court for a peremptory writ.
(h)A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.
(i)This section does not apply to a SLAPPback filed by a public entity.
Defamation is effected by either of the following:
Civil Code § 45 [Definition and elements of Libel]
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
Civil Code § 45a [Distinction between Libel Per Se and Libel Per Quod]
A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.
Civil Code § 46 [Definition and elements of Slander]
Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1.Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2.Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3.Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4.Imputes to him impotence or a want of chastity; or
5.Which, by natural consequence, causes actual damage.
Civil Code § 47 [Privileged statements that do not constitute defamation]
A privileged publication or broadcast is one made:
(a)In the proper discharge of an official duty.
(b)In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1)An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2)This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, "physical evidence" means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3)This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4)A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
(c)In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(d)(1)By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.
(2)Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:
(A)Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B)Breaches a court order.
(C)Violates any requirement of confidentiality imposed by law.
(e)By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.
Civil Code § 47.5 [Special rules for Peace Officers]
Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.
Civil Code § 48 [Section 47(c) malice cannot be inferred from statement]
In the case provided for in subdivision (c) of Section 47, malice is not inferred from the communication.
Civil Code § 48a [Special rules for newspapers and radio stations]
1.In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.
2.If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.
3.A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.
4.As used herein, the terms "general damages," "special damages," "exemplary damages" and "actual malice," are defined as follows:
(a)"General damages" are damages for loss of reputation, shame, mortification and hurt feelings;
(b)"Special damages" are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;
(c)"Exemplary damages" are damages which may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice;
(d)"Actual malice" is that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.
Civil Code § 48.5 [Special rules for radio and television broadcasters]
(1)The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement or matter published or uttered in or as a part of a visual or sound radio broadcast by one other than such owner, licensee or operator, or agent or employee thereof, if it shall be alleged and proved by such owner, licensee or operator, or agent or employee thereof, that such owner, licensee or operator, or such agent or employee, has exercised due care to prevent the publication or utterance of such statement or matter in such broadcast.
(2)If any defamatory statement or matter is published or uttered in or as a part of a broadcast over the facilities of a network of visual or sound radio broadcasting stations, the owner, licensee or operator of any such station, or network of stations, and the agents or employees thereof, other than the owner, licensee or operator of the station, or network of stations, originating such broadcast, and the agents or employees thereof, shall in no event be liable for any damages for any such defamatory statement or matter.
(3)In no event, however, shall any owner, licensee or operator of such station or network of stations, or the agents or employees thereof, be liable for any damages for any defamatory statement or matter published or uttered, by one other than such owner, licensee or operator, or agent or employee thereof, in or as a part of a visual or sound radio broadcast by or on behalf of any candidate for public office, which broadcast cannot be censored by reason of the provisions of federal statute or regulation of the Federal Communications Commission.
(4)As used in this Part 2, the terms "radio," "radio broadcast," and "broadcast," are defined to include both visual and sound radio broadcasting.
(5)Nothing in this section contained shall deprive any such owner, licensee or operator, or the agent or employee thereof, of any rights under any other section of this Part 2.
Civil Code § 48.7 [Special rules for reports of child abuse]
(a)No person charged by indictment, information, or other accusatory pleading of child abuse may bring a civil libel or slander action against the minor, the parent or guardian of the minor, or any witness, based upon any statements made by the minor, parent or guardian, or witness which are reasonably believed to be in furtherance of the prosecution of the criminal charges while the charges are pending before a trial court. The charges are not pending within the meaning of this section after dismissal, after pronouncement of judgment, or during an appeal from a judgment.
Any applicable statute of limitations shall be tolled during the period that such charges are pending before a trial court.
(b)Whenever any complaint for libel or slander is filed which is subject to the provisions of this section, no responsive pleading shall be required to be filed until 30 days after the end of the period set forth in subdivision (a).
(c)Every complaint for libel or slander based on a statement that the plaintiff committed an act of child abuse shall state that the complaint is not barred by subdivision (a). A failure to include that statement shall be grounds for a demurrer.
(d)Whenever a demurrer against a complaint for libel or slander is sustained on the basis that the complaint was filed in violation of this section, attorney's fees and costs shall be awarded to the prevailing party.
(e)Whenever a prosecutor is informed by a minor, parent, guardian, or witness that a complaint against one of those persons has been filed which may be subject to the provisions of this section, the prosecutor shall provide that person with a copy of this section.
(f)As used in this section, child abuse has the meaning set forth in Section 11165 of the Penal Code.
Civil Code § 48.8 [Special rules for school personnel]
(a)A communication by any person to a school principal, or a communication by a student attending the school to the student's teacher or to a school counselor or school nurse and any report of that communication to the school principal, stating that a specific student or other specified person has made a threat to commit violence or potential violence on the school grounds involving the use of a firearm or other deadly or dangerous weapon, is a communication on a matter of public concern and is subject to liability in defamation only upon a showing by clear and convincing evidence that the communication or report was made with knowledge of its falsity or with reckless disregard for the truth or falsity of the communication. Where punitive damages are alleged, the provisions of Section 3294 shall also apply.
(b)As used in this section, "school" means a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive.
Civil Code § 48.9 [Special rules for anonymous witness programs]
(a)An organization which sponsors or conducts an anonymous witness program, and its employees and agents, shall not be liable in a civil action for damages resulting from its receipt of information regarding possible criminal activity or from dissemination of that information to a law enforcement agency.
(b)The immunity provided by this section shall apply to any civil action for damages, including, but not limited to, a defamation action or an action for damages resulting from retaliation against a person who provided information.
(c)The immunity provided by this section shall not apply in any of the following instances:
(1)The information was disseminated with actual knowledge that it was false.
(2)The name of the provider of the information was disseminated without that person's authorization and the dissemination was not required by law.
(3)The name of the provider of information was obtained and the provider was not informed by the organization that the disclosure of his or her name may be required by law.
(d)As used in this section, an "anonymous witness program" means a program whereby information relating to alleged criminal activity is received from persons, whose names are not released without their authorization unless required by law, and disseminated to law enforcement agencies.
SLAPP Cases of Note
We collect here some of the interesting SLAPP cases that explain and illustrate the interaction of all of the above statutes.
One of our latest anti-SLAPP victories provides a beautiful illustration of a "stealth" SLAPP suit that the plaintiff’s attorney failed to recognize, to the great expense of his client.
In this case our (future) client’s business partner, we’ll call him Freddy Fraudster, opened a credit card account at a local bank using our client’s personal information. When our client discovered what Freddy had done, he contacted the bank and informed the personnel there that Freddy had committed fraud, and based on this report the bank closed the account and reported the matter to the police. Our client also filed a police report, and filed for a restraining order against Freddy.
Freddy was not happy. He had a long term relationship with the bank, and based on the report by our client, the bank closed his accounts and would have nothing further to do with him. Apparently thinking the best defense is a good offense, and hoping that winning the race to the courthouse might give him some leverage, Freddy filed an action against our client. He claimed that our client had authorized him to open the account, and that the report to the bank was therefore defamatory since it accused him of fraud.
Do you see why Freddy’s action in Superior Court was a SLAPP suit? We did, and we successfully brought an anti-SLAPP motion. You see, a SLAPP suit is one that tries to block a person’s right of petition. Freddy’s attorney realized that the report to the police and the application for the restraining order were protected rights of petition, but he mistakenly thought that the report to the bank, requesting that the credit card be cancelled, was not a petition for redress and therefore did not fall under the SLAPP statute because it did not involve any government agency. No doubt, he thought that by suing our client for defamation, he could make all his evil deeds go away and get back in good stead with the bank by offering to dismiss the case if our client would withdraw his remarks to the bank, court and police. Now it sounds like a SLAPP, doesn’t it?
The interpretation of the SLAPP statutes by Freddy’s attorney was far too narrow. Consider. One day you run a credit report on yourself and you find that someone has fraudulently opened a credit card in your name. What is the first thing you are going to do? Call an official government agency? You might do that eventually, but first you are going to call the credit card company and tell them to cancel the card. Thus, contacting the credit card company, or in our case the bank, is a natural part of the entire "right of petition."
It’s very similar to the litigation privilege. I occasionally see cases where a defendant tries to sue the plaintiff and his attorney, claiming that the demand letter sent by the attorney was defamatory because it falsely claimed the defendant did something illegal. But under Civil Code section 47, anything said in conjunction with litigation is privileged and therefore not defamatory. The demand letter from the attorney takes place before legal action is ever filed, but it is still part of the litigation process.
So it was here. The report to the bank occurred before any "right of petition" was pursued with a government agency, but calling to cancel the credit card was a natural part of that process. If a plaintiff were permitted to SLAPP a defendant by focusing on the activities leading up to the actual right of petition, then the intent of the anti-SLAPP statutes would be subverted. We explained that to the court, and our motion was granted.
Two Recent Victories Illustrating anti-SLAPP Motions
I’ve decided to use two of our recent anti-SLAPP victories as examples of the process, and to illustrate how this process, that was meant to quickly dispose of SLAPP cases, can get so convoluted.
The Case of the Outraged City Council Member
In this case, our (future) client addressed a city council meeting on a matter she felt was important to the city. Specifically, the city had been rocked by some controversy involving city council members, and our client was speaking to the issue of how the newly-elected council members should go about performing their duties. To illustrate the point, she cited the example of a former council member who had taken money from special interests. The city council member in question took umbrage with the accusation that she had acted unethically, and sued our client for defamation. We were retained to fight the defamation action.
It is seldom that we are presented with such a clear SLAPP suit. Remember, SLAPP stands for Strategic Lawsuit Against Public Participation. What better example of public participation is there than a citizen addressing their city council? Indeed, under Civil Code section 47, any comments made during a "legislative proceeding" are absolutely privileged (meaning they can never be defamatory). Better yet from the standpoint of an anti-SLAPP motion, section 425.16(e)(1) provides that statements made before a legislative proceeding are protected speech.
So let’s run the facts through the two prongs of the anti-SLAPP analysis. First, as counsel for the defendant, it was our burden to show that the speech was protected within the meaning of the anti-SLAPP statute. That was a no-brainer in this instance, since the words were spoken at a city council meeting. And since the conduct falls under a specific anti-SLAPP section of 425.16, there was no need to show that the topic was a matter of public interest. "Any matter pending before an official proceeding possesses some measure of ‘public significance’ owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights § 425.16 was intended to protect." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118.)
Our having shown that the speech was protected, the second prong of the anti-SLAPP analysis requires plaintiff to show a reasonable likelihood of success on her claim, which in this case would be impossible. Since section 47 makes speech at a city council meeting absolutely privileged, the speech by definition cannot constitute defamation.
So a slam-dunk anti-SLAPP motion, right? Not quite.
A SLAPP motion puts a stay on all discovery, which is one of the primary benefits of an anti-SLAPP motion because it keeps the plaintiff from using the discovery process as a sledgehammer to try to wear down the defendant. In this case, counsel for Plaintiff had served discovery prior to the anti-SLAPP motion, and argued that the court should permit that discovery prior to ruling on the anti-SLAPP. There is authority for the proposition that a plaintiff should be permitted to conduct discovery to determine whether the defendant acted with malice, because that takes away certain privileges under section 47. However, there is no malice exception for words spoken at a city council meeting, so no amount of discovery by the Plaintiff could have revealed information that would have defeated the anti-SLAPP motion.
Nonetheless, the court granted Plaintiff’s request for discovery, and that added two months to the process. It could have been that the court just did not understand the authorities we provided, but more likely the court was bending over backwards to give the plaintiff access to discovery, specifically because the judge knew she was going to grant the motion, and did not want Plaintiff to have any possible basis for appeal. In that sense, the judge might have done us a favor, but it is frustrating to deal with a frivolous action for an additional two months. We were successful, though, in limiting greatly limiting the discovery. The court denied Plaintiff’s request to take our client’s deposition.
As expected, the discovery revealed nothing useful to the Plaintiff. Instead, the Plaintiff attempted to argue that the conduct by Defendant was "illegal" and therefor not protected. This was another instance where there is authority for the proposition being claimed, but that legal theory had no application to the case at hand. In the case of Flatley v. Mauro, an attorney had sent threatening letters to someone, threatening to sue him if he did not pay a large settlement to a client. Normally, a letter from an attorney in anticipation of litigation would be protected speech under the litigation privilege, but the Flatley court ruled that the attorney’s letters had risen to the level of extortion, and were therefor illegal and unprotected.
Plaintiff was trying to say that our client’s speech at the city council meeting was illegal and therefor unprotected according to Flatley. And how could speech at a city council meeting ever be illegal, you ask? According to Plaintiff, it was illegal because the city council’s own guidelines state that comments should be civil, and Defendant’s comments had not been civil.
Predictably, the court understood that even if the words were interpreted to be rude, a city council’s guidelines do not amount to law, and violating them does not amount to criminal conduct. The court granted our anti-SLAPP motion, striking the defamation complaint and entering judgment in our favor. The court also awarded us over $18,000 in attorney fees against the Plaintiff.
I’ll Sue You if You Sue Me.
The next case was especially satisfying because it was not a classic anti-SLAPP case involving defamation, but we persuaded the judge that the matter fell under the anti-SLAPP laws.
In this case, our (future) client had entered into a settlement agreement with the defendant in a prior action. The settlement agreement required the defendant company to pay damages to our client, and contained a confidentiality agreement. Two years after the settlement agreement was signed, the defendant had still not paid the damages to the plaintiff, so he retained our firm to sue to collect the money due under the agreement.
We filed the action for breach of contract, attaching a copy of the settlement agreement. The defendant answered the complaint and also filed a cross-complaint, claiming that it was a breach of the confidentially agreement to attach the settlement agreement to the complaint. Incidentally, counsel for defendant had discussed with me his intention to cross-complain on this basis, and I had warned him that would be a really bad idea. He did so anyway.
The reason the cross-complaint was a bad idea is because it was a SLAPP. Do you see why? Remember again what SLAPP stands for – Strategic Litigation Against Public Participation. Defendant had breached the settlement agreement, so clearly we were entitled to sue for breach of that contract. That is the public participation – taking a case before a court for redress of a grievance. Defendant was suing our client for suing, claiming that it was a breach of the agreement to make the confidential settlement agreement a matter of public record. We filed our anti-SLAPP motion against Defendant/Cross-Complainant for the cross-complaint.
So let’s run this case through the two-prong, anti-SLAPP analysis. Our burden was to show that the speech was protected under the anti-SLAPP statute. The speech here was the complaint itself, with the settlement agreement attached. Filing a complaint is a specifically protected activity under the anti-SLAPP statute, and comments made in conjunction with litigation are protected under Section 47. There was no issue that our complaint was a protected activity.
That takes us to the second prong, by which the plaintiff, here the cross-complainant, must show a reasonable likelihood of success on the merits of the case, even if the speech is a protected activity. In this regard, the company argued vigorously that the breach by our client was clear – Plaintiff was required to keep the settlement confidential but had breached that obligation by attaching the settlement agreement to the complaint.
This argument showed a fundamental misunderstanding of contract law by counsel for the company. Allow me to resort to a simple analogy to illustrate the point. If I agree to sell you my watch for $100, but you never give me the $100, am I still required to give you my watch? Of course not. In legal jargon, your failure to perform is said to excuse me from my performance. In this simple example, this point of law is clear to anyone, but that is the point that counsel for the company was missing.
Our client was required to keep the agreement confidential in exchange for payment of the damages. But the company never paid the money, so our client was excused from performance. Further, to sue for breach of contract, a plaintiff must allege the terms of the agreement. Here, there was no way to allege a breach of contract without specifying the terms of that agreement. The company argued we should have sought to bring the complaint under seal so no one would ever know the terms, but there is not such obligation required under the law.
But the company had an even more fundamental issue with its cross-complaint. The elements of a breach of contract claim are (1) a contract; (2) a breach of that contract; (3) performance by the plaintiff; and (4) damages from the breach. The company was alleging breach of contract, but it had utterly failed to perform. I attached a declaration from our client saying he had never been paid, and the company could say nothing to refute that point. Thus, the company could never prevail on its breach of contract claim because it could not satisfy the performance element.
The court granted our anti-SLAPP motion, threw out the cross-complaint, and the company is on the hook for more than $15,000 in attorney fees.
Flatley v. Mauro (2006) 39 Cal.4th 299
This was an interesting case involving Michael Flatley, one of the "Riverdance" dancers. In this case the California Supreme Court examined the interplay between the litigation privilege afforded by Civil Code section 47, and whether the SLAPP statutes would fail to protect otherwise privileged speech.
In the case, a woman alleged that Flatley raped her in Las Vegas. She retained an attorney to sue, and he wrote an called Flatley, threatening to "go public" with the allegations if his client wasn't paid "seven figures." When Flatley refused to pay, the lawyer filed suit, claiming battery and intentional infliction of emotional distress.
Most attorneys would assume this conduct fell under the litigation privilege of section 47, which protects any communication made in conjunction with or in anticipation of legal action. Flatley's attorney, however, filed a lawsuit against the woman's attorney, alleging extortion, defamation and fraud. The woman's attorney responded by filing an anti-SLAPP motion, seeking to have Flatley's case dismissed. He argued that his letter was a prelitigation settlement offer in furtherance of his constitutional right to petition.
The Court of Appeal and Supreme Court both disagreed, affirming denial of the attorney's motion to dismiss. Section 425.16 “cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.” (39 Cal.4th 317.) “[W]here either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied. The rationale is that the defendant cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes” its purpose to prevent and deter lawsuits brought primarily to chill the valid exercise of free speech and petition rights. (39 Cal.4th 316.)
While normally the litigation privilege of Civil Code section 47 would protect all prelitigation related communications, “they are nonetheless not protected under the anti-SLAPP statute.” (39 C.4th 322.) The litigation privilege and the anti-SLAPP statute, though related, “are substantively different statutes that serve quite different purposes, and it is not consistent with the language or the purpose of the anti-SLAPP statute to protect” prelitigation threats constituting extortion. (39 C.4th 322.)
The court found that the defendant’s conduct constituted extortion as a matter of law. He threatened to publicly accuse plaintiff of rape and other specified violations of law unless he “settled” by paying a minimum of $1 million, of which defendant would receive 40%. The attorney threatened that he would publicize the rape story at every one of Flatley's tour dates “for the rest of his life.” “That the threats were half-couched in legalese did not disguise their essential character as extortion.” (39 C.4th 330.)
Anti-SLAPP Statute Can Be Used In Federal Court
Greensprings Baptist Christian Fellowhip Trust v. Cilley
There is currently no federal anti-SLAPP statute, but that does not mean the anti-SLAPP remedy is not available in federal court. In federal diversity cases brought in California, applying California law, a defendant still maintains the right to bring a motion to strike under Civil Procedure section 425.16. But overlaying this statute onto federal procedures has created some issues.
The right to amend.
In California, it is now clear that once an anti-SLAPP motion has been filed, the plaintiff cannot amend the complaint in an attempt to fix the problems that made the complaint a SLAPP. But in the recent case of Greensprings Baptist Christian Fellowhip Trust v. Cilley, the Ninth Circuit saw things differently.
That case arose from a malicious prosecution action. The defendant filed an anti-SLAPP motion which was granted by the court, but with leave to amend. The court ruled that under the very liberal amendment standards of federal court, leave was proper.
As a side note, the decision made little sense, again illustrating that many courts struggle with the hybrid nature of an anti-SLAPP motion. Even though demurrers are not permitted in federal court, that was the standard applied by the District Court. When a demurrer is sustained because the complaint fails to allege essential elements, leave to amend is normally granted to afford the opportunity to allege the missing elements. In Greensprings, the court determined that plaintiff had failed to meet the second prong of the anti-SLAPP analysis – providing sufficient evidence to show a likelihood of success. But why grant leave to amend? If the issue is evidence, then no amount of amending will provide more evidence.
And that takes us to the next difference between state and federal court:
The right to appeal.
California’s anti-SLAPP statute provides for an immediate appeal from a denial, so the defendant did just that. But that raised another issue. Federal courts do not like interim appeals, statute or not. The Court of Appeals held that as a matter of first impression, the order granting anti-SLAPP motion to strike complaint with leave to amend did not conclusively determine disputed question of anti-SLAPP statute's applicability, and thus order was not immediately appealable. "Accordingly, we hold that we lack jurisdiction under the collateral order doctrine to entertain an appeal from the portion of a district court's order granting a defendant's anti-SLAPP motion which gives a plaintiff leave to amend her complaint."
However, the decision was a narrow one limited to the specific circumstances. The Court of Appeal confirmed that California’s right of appeal is available when immediate review is necessary to safeguard the right protected by the state’s statute. Thus, while Greensprings denied the right to appeal, it affirmed that immediate appeal is available under the proper circumstances.