SLAPP Update

California's anti-SLAPP statute is an ever-broadening and useful legal tool, providing for the early dismissal of strategic lawsuits against public participation (called "SLAPPs"). (Cal. Code Civ. Proc., § 425.16(b)(1).) Anti-SLAPP issues can arise in any number of practice areas, and every attorney in the Golden State should be familiar with the basics of this oft-cited statute. Since its passage in 1992, anti-SLAPP motions have generated nearly 400 published appellate opinions.

Two-Prong Test
An anti-SLAPP motion may be filed within 60 days of service of a complaint (§ 425.16(f)); more on this later. Courts engage in a two-pronged analysis when reviewing the motion. First, a judge will determine if the activity targeted by the complaint is protected speech or petitioning activity, as defined by the statute. If that is the case, the judge will proceed to examine whether the plaintiff has shown a probability of success on the merits.

The statute applies to causes of action that arise from acts "in furtherance of [a] person's right of petition or free speech ... in connection with a public issue." Those rights include making written or oral statements before legislative, executive, or judicial proceedings, or before any other "official proceeding" authorized by law. They also cover written or oral statements made in connection with issues under consideration in those proceedings, as well as any statement made in a place open to the public or a public forum in connection with an "issue of public interest." Finally, the anti-SLAPP statute protects 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. (§ 425.16 (b), (e).)

Official Proceedings
Section 425.16 applies to a host of official proceedings, including judicial cases (and most conduct associated with litigation); private hospital peer review; and various executive and legislative proceedings, such as those associated with putting local initiative measures on the ballot. (See Rusheen v. Cohen, 37 Cal. 4th 1048 (2006) [noncommunicative acts enforcing default judgment]; Kibler v. Northern Inyo County Local Hospital Distr., 39 Cal. 4th 192 (2006) [hospital peer review]; and Vargas v. City of Salinas, 46 Cal. 4th 1 (2009) [local ballot initiative].)

Litigation Activities
When assessing whether litigation activity triggers anti-SLAPP protection, be aware that the statute may not apply to every contested matter. Although it extends to certain litigation conduct - including negotiation and settlement activities (Seltzer v. Barnes, 182 Cal. App. 4th 953 (2010)) - there is a current debate over whether the anti-SLAPP statute applies to private arbitration. (See Century 21 Chamberlain & Assocs. v. Haberman, 173 Cal. App. 4th 1 (2009) [private arbitration not protected]; and Freeman v. Schack, 154 Cal. App. 4th 719, 730 (2007) ["arbitration is a protected activity"].)

And there is an ongoing split among the California courts of appeal as to whether the anti-SLAPP statute applies to suits claiming legal malpractice and professional misconduct. (Compare Coretronic Corp. v. Cozen O'Connor, 192 Cal. App. 4th 1381 (2011) [not covered] with Fremont Reorganizing Corp. v. Faigin, 198 Cal. App. 4th 1153 (2011) [covered].)

What's Important?
Courts have interpreted the phrase "issue of public interest" with varying breadth. Some have held that actual, demonstrated interest in an issue must exist. (Price v. Operating Engineers Local Union No. 3, 195 Cal. App. 4th 962, 974 (2011).) Other courts have held that fame or celebrity alone is sufficient. (No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018, 1027 (2011).) Issues of public interest include, for instance, the location of a registered sex offender's residence (Cross v. Cooper, 197 Cal. App. 4th 357 (2011)) and criticism of a private homeowners association board (Country Side Villas Homeowners Ass'n v. Ivie, 193 Cal. App. 4th 1110 (2011)). But conversely, one court held there is no issue of public interest in a case involving city land use guidelines. (USA Waste of California, Inc. v. City of Irwindale, 184 Cal. App. 4th 53 (2010).)

What's Public?
In addition to street-corner orations, the anti-SLAPP statute covers speech on the Internet. (Wong v. Jing, 189 Cal. App. 4th 1354, 1366 (2010).) However, the appellate courts split on whether newspapers and magazines should be considered public fora. (Compare Nygård, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008) [public fora] with Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal. App. 4th 855 (1995) [not public].)

Mixed Claims
When a cause of action is "mixed" - based on both protected activity and unprotected activity - it is subject to an anti-SLAPP motion to dismiss unless the protected conduct is "merely incidental" to the unprotected conduct. (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 1551 (2010).)

Plaintiff's Burden
Once a defendant has shown that his or her conduct is statutorily protected activity, the court must then determine whether the plaintiff has shown a probability of success on the merits. In making its ruling the court must consider the pleadings, as well as supporting and opposing affidavits stating the facts underlying the liability or defense that is at issue. (§ 425.16(b)(1), (2).) The anti-SLAPP motion operates like a "motion for summary judgment in 'reverse.' " (College Hospital, Inc. v. Superior Court, 8 Cal. 4th 704, 718- 719 (1994).)

The "success" prong gets complicated when a cause of action arises from mixed activities. In such a case, the issue is whether the plaintiff must show a likelihood of success on the cause of action as a whole; on only the part of the claim premised on protected activity; or on any part of the claim, whether protected or not. In Wallace v. McCubbin (196 Cal. App. 4th 1169 (2011)), the court chose the third option: The plaintiffs were able to overcome the anti-SLAPP motion by showing a probability of success on either a protected or unprotected part of the claim.

However, the court of appeal was reluctant to come to that conclusion, since a different ruling (requiring a plaintiff to show a probability of success on the claims arising from protected activity) would better serve the policy against chilling First Amendment rights. (Wallace, 196, Cal. App. 4th at 1196- 1203.) The court felt constrained to rule as it did because of dicta in another case, even though that other decision (Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011)) did not involve a mixed cause of action.

One recent case has created confusion on this point, holding that the proper approach is, after assessing the probability of prevailing on each cause of action, to "strike the portions of the mixed cause of action that fall within anti-SLAPP protections." (City of Colton v. Singletary, 206 Cal. App. 4th 751 (2012).) It remains an open question how the mixed cause of action will fare in the state Supreme Court.

No SLAPP?
There are a number of areas in which a party explicitly may not bring an anti-SLAPP special motion to strike.

Enforcement actions: The statute does not apply to enforcement actions "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." (§ 425.16 (d).)

Criminal activity: The California Supreme Court has also imposed an "illegality exception": A defendant is precluded from filing an anti-SLAPP motion to strike if the underlying speech or petitioning activity is illegal as a matter of law. (Flatley v. Mauro, 39 Cal. 4th 299, 320 (2006); and Mendoza v. ADP Screening & Selection Services, Inc., 182 Cal. App. 4th 1644, 1654 (2010) [illegal conduct means violation of a criminal statute only].)

Public Interest Suits: The anti-SLAPP statute "does not apply to any action brought solely in the public interest or on behalf of the general public" if the plaintiff seeks relief tantamount to that available to the general public; if the action would enforce an important right affecting the public interest; if it would confer an important public benefit; and if private enforcement is necessary. (§ 425.17(b).) Note, however, that the public interest exception applies only when the entire action is brought in the public interest. (Club Members for an Honest Election v. Sierra Club, 45 Cal. 4th 309 (2010).)

Commercial speech: The anti-SLAPP statute does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services and arising from any statement or conduct by that person. (§ 425.17(c).) For this exception to apply, the statement or conduct must consist of factual representations about the commercial activity made for the purpose of engaging in commercial transactions, and the intended audience must be an actual or potential customer or regulatory agency. (§ 425.17(c)(1) & (2).) The plaintiff bears the burden of establishing the applicability of the commercial speech exemption. (Simpson Strong-Tie Co., Inc. v. Gore, 49 Cal. 4th 12 (2010).)

Notwithstanding the general bar on anti-SLAPP cases involving commercial speech, motions in such cases may still be filed by publishers, editors, journalists, reporters, writers, and academics for actions in furtherance of their work; by those engaged in creating or advertising dramatic, literary, musical, political, or artistic works; and also by certain government-subsidized nonprofits. (§ 425.17(d).)

SLAPPbacks: Special procedural rules apply to so-called SLAPPbacks, defined as "cause[s] 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." Different time limits apply for filing such a motion; there is no discovery stay; a prevailing nonmoving party is not entitled to attorneys fees; and the court's order is not immediately appealable. (§ 425.18(b)(1), (c)- (d).)

Procedural Pitfalls
Time limits: Statutory anti-SLAPP deadlines for filing and scheduling a hearing are not jurisdictional in nature. An anti-SLAPP special motion to strike "may" be filed within 60 days of the service of the complaint, but the court has discretion to allow filing "at any later time upon terms it deems proper." (§ 425.16(f); Chitsazzadeh v. Kramer & Kaslow, 199 Cal. App. 4th 676, 682- 685 (2011).) This rule applies to both original and amended complaints (Lam v. Ngo, 91 Cal. App. 4th 832, 842- 843 (2001)) as well as to cross-complaints and petitions (§ 425.16(h)).

Generally, the clerk must schedule a hearing within 30 days (§ 425.16(f)), but failure to do so does not require denial of the motion. (Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1348- 1349 (2007).)

Judicial Council: Any party who files an anti-SLAPP motion or opposition must promptly transmit to the Judicial Council a copy of the endorsed, filed caption page; a copy of any related notice of appeal or writ petition; and a conformed copy of any order relating to the motion. (§ 425.16(j)(1).)

Discovery stay: Once a party files a notice of an anti-SLAPP motion, all discovery proceedings are stayed 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 provision. (§ 425.16 (g).)

Ability to amend: Once the court grants an anti-SLAPP motion, the plaintiff cannot amend the complaint. (Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1068 (2001).) But if the motion is denied, a party may amend the pleadings (Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 863 (2009).)

Immediate appeal: A trial court's ruling on an anti-SLAPP motion is directly appealable. (§ 425.16(i).) An appeal from the denial of an anti-SLAPP motion automatically stays all further trial court proceedings on the causes of action affected by the motion. (Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 186 (2005).) Review on appeal is de novo. (Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 820 (2011).) However, if the court concludes that the anti-SLAPP statue does not apply under section 425.17, there is no immediate right of appeal. (§ 425.17(e).)

Attorneys Fees
A prevailing defendant - normally the moving party under section 425.16 - is entitled to attorneys fees and costs. However, a prevailing plaintiff - normally the responding party - is entitled to recover fees only if the motion is "frivolous or is solely intended to cause unnecessary delay." (§ 425.16, subd. (c)(1).) Courts have applied this asymmetrical scheme and upheld it against various constitutional challenges. (Vargas v. City of Salinas, 200 Cal. App. 4th 1331, 1340- 1350 (2011).)

Partial victory: If the defendant successfully moves to dismiss some but not all claims, the court must assess the degree to which the defendant has prevailed and award fees in light of the purpose of the statute. (Mann v. Quality Old Time Service, Inc., 139 Cal. App. 4th 328 (2006) [party successful in anti-SLAPP motion as to one of four causes of action entitled to attorney fees]; and Moran v. Endres, 135 Cal. App. 4th 952, 954- 956 (2006) [defendants not entitled to fees in "illusory victory" resulting in dismissal of only one of eleven counts].)

Since its enactment 20 years ago, the anti-SLAPP statue has come to dominate law and motion departments up and down the state. It has also found a place in appellate courts, much to the dismay of some judges. Indeed, as Associate Justice James Richman wrote last year, "no let up seems in sight, as one cannot pick up a volume of the official reports without finding an anti-SLAPP case. Or four." (Grewal v. Jammu, 191 Cal. App. 4th 977, 998 (2011).)

Hopefully, counsel will not be lost in that thicket. The anti-SLAPP statute can, and should, be used effectively to fulfill its mission of preventing retaliatory litigation and protecting free speech and petition rights in California.

Jeremy B. Rosen is a partner at Horvitz & Levy in Encino, where Josephine Mason Ellis was previously an attorney at Horvitz & Levy; she now is a law clerk to Judge James L. Dennis, Fifth U.S. Circuit Court of Appeals.

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