One of the best-kept secrets from the public and even some portion of the legal profession is the statutory protection of a person's right of free speech or petitioning activity that is threatened through use of a what is generally referred to as a "strategic lawsuit against public participation" -- aka SLAPP. Such lawsuits seek to restrict the guaranteed right of free speech or petitioning activity under the U.S. and California constitutions. The antidote is the filing of an "anti-SLAPP" motion by a defendant in those cases, which is a statutorily provided special opportunity to strike the plaintiff's complaint on grounds that such speech or conduct objected to fits within one of the categories spelled out in the relevant statute, Code of Civil Procedure Sections 425.16 et seq.
According to the Media Law Research Center, as of January 2019, 28 states including California plus the District of Columbia and Guam, have anti-SLAPP statutes the scope of which vary greatly. In 2015 the Washington state and in 2017 the Minnesota anti-SLAPP statutes respectively were declared unconstitutional on the ground they violated the right to civil jury trial. The scope of these anti-SLAPP statutes varies greatly. Some statues are narrowly written while others are more expansive. The California statute provides the broadest scope of protection to date and has been closely mirrored by at least four other states.
This state's statute was enacted to curb the "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," indicating it "is in the public interest to encourage continued participation in matters of public significance," and which "should not be chilled through abuse of the judicial process," but "construed broadly." CCP 425.16(a). Easily said but difficult in the execution and application as is demonstrated by the historical volume of ant-SLAPP cases in this state. See Honorable Brian M. Hoffstadt, "Slapping Cobras," ABTL Report, VOL. XXXIV, NO. 5 (Spring 2016), at 1, 7.
This two-part article attempts a critical overview of the puzzling problem presented by the statute as exacerbated by the confusion encouraged by the various lower appellate court decisions throughout the state when considering its correct application. In part one we will discuss general considerations and unique aspects of California's anti-SLAPP statute, as well as some court-created problems with the law. In part two, we will look at more recent case law, the scope of the problem and challenges going forward. Hopefully this will provide some helpful suggestions concerning the navigation of these still uncharted waters, enabling counsel to successfully steer a safer course for their clients when faced with a decision whether to pursue or oppose such a motion.
In California, there are four major aspects to the statute: (1) to prevail, the defendant must show that its challenged actions come within one of the categories of the statute (CCP 425.16(e)); (2) if so, the burden then shifts to the plaintiff to show (based on the pleadings as well as the supporting and opposing affidavits) there is a probability of prevailing on the merits (CCP 425.16(b)(2)); (3) subject to specified sections of the Government Code, a defendant who is successful in striking some or all of plaintiff's claims will be entitled to collect its reasonable attorney fees and costs (CCP 425.16(c)(2)); and (4) nothing in connection with a determination in favor of a plaintiff shall be admissible in evidence or affect the burden or degree of proof in the subject or other proceedings (CCP 425.16(b)(3)). Regarding (3), the caveat is, if the court finds defendant's motion to be "frivolous" or "solely intended to cause unnecessary delay," the court "shall award costs and reasonable attorney's fees" to the prevailing plaintiff, "pursuant to [CCP] Section 128.5." CCP 425.16(c)(1).
Generally, a "SLAPP" is a (1) civil complaint, cross-complaint or counterclaim, (2) filed against individuals or organizations, and (3) arising from their communications to government, or speech on an issue of public interest or concern, such as postings on the internet, letters to the editor, petition circulation, communicating with public officials, police misconduct reporting, property signs expressing an opinion, commenting to school officials, public meeting speeches, initiating a public interest lawsuit, or testifying before a public legislative body. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into litigation. See California Anti-SLAPP Project.
Most SLAPPs are ultimately legally unsuccessful in court, but they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, resources and time. The resulting effect of a SLAPP is a "chill" on public participation in, and open debate on, important public issues. This chilling effect is not limited to the SLAPP targets. Fear of being the object of future litigation often deters others from commenting or getting involved. Id.
An order granting or denying an anti-SLAPP motion is immediately appealable under Code of Civil Procedure Section 904.1 (appeals in civil actions). CCP 425.16(i). Should such a special motion to strike be denied by a trial court because the action is exempt pursuant to Code of Civil Procedure Section 425.17 (b) or (c), the decision by the trial court is not appealable. CCP 425.17(e). Under subdivision (b), certain actions "brought solely in the public interest or on behalf of the general public" are exempt if all the conditions specified under that subdivision exist; under subdivision (c), the section does not apply under certain conditions to "any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services," as designated in the subdivision "arising from any statement or conduct by that person." Nevertheless, neither subdivision applies to any person enumerated in subdivision (d) relating to the California Constitution or the Evidence Code, persons "engaged in the dissemination of ideas or expression" designated therein, nor to certain specified nonprofit organizations. CCP 425.17 (d)(1)-(3).
Unique Aspects of California Law
California Court of Appeal Associate Justice Brian M. Hoffstadt (2nd District, Div. 2), opines that very few California civil lawyers remain unfamiliar with "SLAPPing" because it is everywhere, and there is no sign this form of litigation will slow its pace any time soon, especially since there appears to be no shortage of cases for the California Supreme Court to consider. Hoffstadt, supra at 1. This is ironic because the purpose behind the anti-SLAPP law was a reduction in litigation. Id. at 7.
There has been much criticism charging the statute with its defects. Justice Hoffstadt zeroes in on three: (1) It is overbroad because it goes beyond valid claims of "chilling" constitutionally protected rights; (2) sometimes it is ineffectual, especially when claims are mixed making it difficult to determine exactly what portion of the section is to be stricken; and (3) it "enables mischief," especially regarding the stay of all proceedings pending an appeal of the trial court's ruling on the motion, or in the event the judge has granted permission to file a late motion. Id. at 7-8. In addition, unless the court orders "specified discovery" notwithstanding the stay of discovery proceedings described in subdivision (g), all such proceedings are stayed upon the filing of the notice of motion. This stay remains in effect until notice of entry of the court's ruling. CCP 425.16(g).
The design of the SLAPPing process not only provides for attorney fees and costs to the successful defendant who filed the motion, but that party may also be able to file what is referred to as a "SLAPPback" action against the plaintiff and its lawyers after dismissal of the SLAPP complaint. Such action would be like a malicious prosecution or abuse of process proceeding for damages. CCP 425.18(b) and (f). Interestingly, the anti-SLAPP statute has been criticized by our Legislature for "disturbing abuse" and courts have condemned it as a "cure worse than the disease." Hoffstadt, supra at 7.
Not to be left out, and perhaps questionable, the courts have chimed in with their own exceptions: (1) actions "against lawyers for litigation-related malpractice"; and (2) "lawsuits brought by persons whose conduct is concededly or conclusively illegal." Id. at 8. Some courts have even gone so far as to call for repeal of the anti-SLAPP provision that permits immediate appeal, and thereby eliminate an automatic stay in such event. Id. Finally, we need to consider what Justice Hoffstadt asserts as a "consensus [that the] anti-SLAPP statute is broken." The conundrum is "what to do about it." Id.
Court-Created Problems with Anti-SLAPPing
It seems the "real problem with the statute ... is inconsistent Court of Appeal opinions construing critical portions of the statute." See Felix Shafir, Jeremy Rosen, David Moreshead, "Speaking Freely," ABTL Report, VOL. XXXIV, NO. 5 (Spring 2016), at 9. Such "splits of authority" have been charged with the responsibility for the "lack of clear guidance" regarding the filing of "unnecessary motions and appeals." Id. While there doesn't appear to be systematic abuse either at the trial or appellate court levels, this does not mean there are not instances of improper use of the statute with which the courts have had to deal. Id. at 10.
The unusual functionality of the anti-SLAPP statute is the action of the intermediate appellate courts enabling its invocation by litigants who seek to take advantage of the judicial disagreement over whether, or the way, the anti-SLAPP law applies. Id. One of these areas concerns the definition of an "issue of public interest." The California Supreme Court's answer to this question clouded the analysis by lower appellate courts, stating "no standards are necessary because they will, or should know a public concern when they see it." Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1122 n.9 (1999). This "no standards approach" has proved unworkable because some lower courts apply a "restrictive test" while others have adopted a "broader view." Hoffstadt, supra at 11.
Complicating this is the problem area of affirmative defenses and how they affect the statutory requirement that a plaintiff must prove the probability of being the prevailing party on the claim. This has resulted in a division of authority among lower appellate courts as to which party has the burden of proof (plaintiff in overcoming the affirmative defense or defendant in proving it). Id. With respect to legal malpractice and similar cases dealing with how a lawyer functions, there is a deep division as to whether the anti-SLAPP statute applies. Further, some appellate courts even find ways to avoid application of the statute that are clearly contrary to its wording. Id.
Supreme Court Should Make Its Presence Felt
The overarching question is why this state's high court has not taken up the mantle and established a clear interpretation of the problem thereby eliminating the confusion that persists among the intermediate appellate courts. Id. Until this occurs, the only self-help available in deciding whether to appeal a trial court decision in California is to become fully informed and carefully research the prior decisions rendered by the various appellate divisions in the specific district where the challenge to the decision by the trial court will be heard.
Nevertheless, even then, until a potential appellant knows the specific appellate division to which the case will be assigned, there will be little chance to discover on which side of the split of authority that division will align. This is because the intermediate appellate courts in this state have a long history of differing between districts as well as one division from the other even within the same district. Generally, even after the notice of appeal is filed, a case will not be assigned to a specific division until the record on appeal has been filed with the appellate district court clerk's office; or unless a notice of motion has been filed regarding a ruling that would prompt an earlier division assignment prior to the filing of the record (per the 2nd District Court of Appeal clerk's office).
While there does not appear to be any actual evidence the anti-SLAPP statute is being abused either at the trial court level or on appeal (Shafir et al., supra at 9), another complication is that some federal courts (e.g., the 9th Circuit) have made it clear they will ignore the California anti-SLAPP rules at both the trial and appellate levels, instead applying their own. This makes for a very rocky road ahead when deciding whether to litigate anti-SLAPP motions at the federal level. See Jens B. Koepke, "Anti-SLAPP appealability getting complicated," Daily Journal (June 22, 2016), at 3.