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general / Civil Procedure

Anti-SLAPP conundrum: Navigating the still-uncharted waters

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In the first installment of this series, we discussed general considerations and unique aspects of California's anti-SLAPP statute (Code of Civil Procedure Sections 425.16 et seq.), as well as some court-created problems with the law. Today in part two we will look at more recent case law and potential challenges going forward. Although not intended to be an exhaustive listing and analysis of the applicable cases, what follows should provide the reader with a good idea of the problems to be faced in this area.

In

In Baral v. Schnitt, 1 Cal. 5th 376 (2016), recognizing a split of authority in appellate court cases dealing with mixed causes of action, the lower appellate court sided with those holding Section 425.16 applies to such causes of action in their entirety, and the statute may not be used to strike allegations within them. However, the Supreme Court reversed, holding an anti-SLAPP motion may be used to strike allegations of a protected activity even without defeating a pleaded cause of action or primary right, disapproving a series of earlier appellate court decisions.

In Travelers Casualty Insurance Company of America v. Hirsh and Visemer, 831 F.3d 1179 (9th Cir. 2016), the insurer brought a concealment action against independent counsel retained to represent the insured. The trial court had denied counsel's motion to strike the complaint under the California anti-SLAPP statute. The circuit court affirmed the decision and held the insurer's claims were not barred by the California anti-SLAPP statute, nor barred by the California litigation privilege, which provides "a publication or broadcast" made as part of a "judicial proceeding" is privileged (Civil Code Section 47(b)).

Expressing dissatisfaction with anti-SLAPP cases in the first instance, the circuit court was not about to allow the defendants to bring interlocutory appeals of the trial court adverse decision. The court was clear in its position that, although providing federal court defendants the advantages of the California anti-SLAPP statute, such motions have no place in federal court in light of the Federal Rules of Civil Procedure, and "the collateral order doctrine does not provide a good fit for immediate appeal of denial of anti-SLAPP motions." Concurring in the decision, Judge Alex Kozinski (joined by Judge Ronald M. Gould) wrote: "Our acceptance of special anti-SLAPP motions was bad enough, but we made the problem worse by allowing defendants to bring interlocutory appeals ... This case is a perfect example of the consequences of that decision. [Defendant] Hirsh appealed to our court after the district court denied his meritless motion to strike ... in the spring of 2014. Two years and a few hundred billable hours later, we're sending the case back for the district court to pick up right where it left off." Id. at 1184.

Two 2016 cases from the California 2nd District Court of Appeal were discovered (Wilson v. Cable News Network, Inv., et al., 2016 DJDAR 12285 (Dec. 12, 2016), from Division One published, and Hunter v. CBS Broadcasting, Inc., B258668 (Jan. 19, 2016), from Division Seven unpublished but relied on in the dissent by Justice Frances Rothschild in the Wilson case). Additionally, there was Nam v. Regents of University of California, 2016 DJDAR 7778 (July 29, 2016), from the 3rd District Court of Appeal (Supreme Court denied de-publication request on Nov. 22, 2016), that weighed in. All are private employment discrimination and retaliation cases. It seems our Supreme Court is content to leave it at that, on the ground these are not actions to prevent defendants from exercising their First Amendment rights, and the initial phase of the case is not the proper forum to litigate any defenses that may exist.

Wilson presented the situation where the plaintiff had filed a suit alleging discrimination and retaliation, not an action to prevent defendants from exercising their First Amendment rights. Hunter was somewhat convoluted because it was a gender and age discrimination case to which the defense was employee selection amounted to an exercise of its free speech rights. Nam was also clear in holding the plaintiff's claims for sexual harassment and retaliation were not protected First Amendment activities under the statute.

It seems in many of these cases either there has been little or no thought given to exactly what the statute was designed to accomplish, or perhaps even a lack of understanding concerning its provisions. There may even be confusion on the part of the bench and bar with respect to just what is at stake.

Breadth and Scope of the Problem

The California Ant-SLAPP Project has compiled a list of California Supreme Court cases as examples indicating the breadth and scope of the problem. From these selected decisions, we see the statute can reach different claims within pleaded counts, even if there is a mixture of assertions of protected and unprotected activity (Baral). A defendant can be protected from civil liability for republication of words of another on the internet (Barrett v. Rosenthal, 40 Cal. 4th 33 (2006)). And where a plaintiff cannot demonstrate probability of prevailing on a claim because of a court's lack of subject matter jurisdiction, the court's ruling is not on the merits of plaintiff's claim. Barry v. State Bar of California, 2017 DJDAR 83 (Cal. Jan. 5, 2017).

While the statute is to be construed broadly and covers qualified lawsuits irrespective of the issues involved (Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106 (1999)), actions for declaratory relief regarding the constitutionality of an ordinance do not qualify as a SLAPP because they do not "seek relief solely in the public interest or on behalf of the general public." City of Cotati v. Cashman, 29 Cal. 4th 69 (2002). For the public interest litigation exception to apply justifying the denial of an anti-SLAPP motion under CCP 425.17(b)(2), there must be a narrow interpretation requiring that the plaintiff is seeking to advance only such interest. Club Members for an Honest Election v. Sierra Club, 45 Cal. 4th 309 (2008).

Additionally, since "the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity," a property dispute does not qualify even though a "protected activity may lurk in the background." In re Episcopal Church Cases, 45 Cal. 4th 467 (2009). Although it is not required the moving party demonstrate the action was brought by the plaintiff with the intent to "chill" the exercise of the protected activity" if the asserted protective free speech or petition activity was "illegal as a matter of law," an anti-SLAPP motion is properly denied. Flatley v. Mauro, 39 Cal. 4th 299 (2006); see also Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002); Fahlen v. Sutter Central Valley Hospitals, 58 Cal. 4th 655 (2014) (Reviewed together with Navellier v. Sletten and City of Cotati v. Cashman).

Searching further, a malicious prosecution action is not exempt from scrutiny under the statute simply because of its nature. Therefore, a litigant whose action was dismissed pursuant to the anti-SLAPP statute may, in turn, invoke that statute as a defense to a subsequent action for malicious prosecution and abuse of process. Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728 (2003). And, "absent circumstances rendering the award unjust," a successful movant under the statute is entitled not only to attorney fees but also to expenses incurred in litigating the motion. Ketchum v. Moses, 24 Cal. 4th 1122 (2001).

Where most of a plaintiff's claims properly should have been struck in the trial court under the anti-SLAPP statute, it is appropriate to award a defendant its costs on appeal. Rusheen v. Cohen, 37 Cal. 4th 1048 (2006). In other words, those communications that have "some relation" to "judicial proceedings" are "absolutely immune from tort liability," whether prior to trial or other proceeding or afterwards. Rubin v. Green, 4 Cal. 4th 1187, 1193 (1993).

Under CCP 425.17(c), speech is only protected if the parties are not competitors (Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12 (2010); and government entities and public officials also are entitled to protection under the statute. Vargas v. City of Salinas, 46 Cal. 4th 1 (2009). Finally, notwithstanding what was said earlier concerning anti-SLAPP appeals, if the trial court denies the motion because the action or portion thereof is exempt pursuant to CCP 425.17, under some instances seeking review of that decision on an anti-SLAPP motion does not automatically stay further proceedings on the merits dealing with the cause or causes of action affected by the motion. CCP 425.17(e).

Other cases of interest because of their subject matter: Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12 (2010), the commercial speech exception to the anti-SLAPP statute, 425.17, is narrow in scope; Metcalf v. U-Haul International, Inc., 118 Cal. App. 4th 1261 (2004), under Section 425.17, commercial defendants cannot invoke protections of the anti-SLAPP statute by claiming their advertising impacted the public interest; Clifford v. Trump, 2:18-cv-06893 SJO (C.D. Cal. Oct. 15, 2018), a tweet by President Donald Trump questioning the veracity of Stephanie Clifford, aka Stormy Daniels, was an exercise of his right of free speech under the First Amendment; Hupp v. Freedom Commc'ns, Inc., 221 Cal. App. 4th 398 (2013), striking a lawsuit against the Orange County Register that arose from a series of posted comments between two readers regarding a Register article; Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 142-45 (2011), creation of a popular television show was an exercise of free speech and a particular episode concerned a matter of public interest; Beckham v. Bauer Publishing Company, L.P., et al., 10-cv-07980 (C.D.Cal. 2011), conduct of international soccer star David Beckham was of public interest for the purposes of the anti-SLAPP statute, even if taking place in the supposed privacy of a bedroom; Wong v. Jing, 189 Cal. App. 4th 1354, 1366-67 (2010), a Yelp posting critical of a dentist qualified under the statute; Yan v. Sing Tao Newspapers San Francisco Ltd. et al., A120311 (Cal. App. Sept. 25, 2008), newspaper's motion to strike a complaint for assault was granted because a plaintiff cannot frustrate the purposes of the anti-SLAPP statute by simply pleading an illegal act; Tendler v. Jewishsurvivors.blogspot.com, 2008 DJDAR 10352 (Cal. App. 6th Dist. July 7, 2008), the anti-SLAPP statute does not apply to a motion to quash a subpoena because that is not "a complaint-like pleading stating causes of action"; Flatley v. Mauro, 39 Cal. 4th 299 (2006), the statute does not apply where the defendant's underlying conduct is illegal because that is not protected by the constitutional guarantees of free speech or petition; Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal. App. 4th 1050 (2005), defendant's activity in providing an open forum through its call-in radio talk show fell within the scope of the statute; Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569 (2003), a Yahoo! message board is a "public forum" within the scope of the statute; Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 67, (2002), defendant is not required to show plaintiff's suit was brought with the intention to chill defendant's speech because plaintiff's "intentions are ultimately beside the point"; McGarry v. University of San Diego, 2007 DJDAR 12396 (Cal. App. 4th Dist. July 17, 2007), statements about termination of a football coach involved a matter of public interest; and Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000), even statements concerning management of a private homeowner association concerned "issues of public interest."

The Challenge

The challenge for lawyers dealing in the convoluted arena of anti-SLAPP litigation is to decide what really makes a difference under the statute (425.16) that can be convincing to an appellate court, not just the trial judge. In effect, they need to plan their approach in advance at the earliest possible stage, anticipating there will be an appeal of the lower court's ruling. Otherwise, as Judge Kozinski said with evident disgust, immediate appeal of the granting or denial of an anti-SLAPP motion will be around "two years and a few hundred billable hours later ... [with the appellate court] sending the case back for [the trial] court to pick up right where it left off." Under these circumstances, presumably the culprits in the event of a lower court erroneous ruling for either plaintiff or defendant would be both the erroneous trial judge and the lawyer(s) for the respective parties' who prevailed at the lower court level.

In all potential anti-SLAPP cases, and especially those that concern employment-labor issues, it appears the problem for lawyers filing such motions is to try to arrive at a workable formula that can calm the waters of litigation while making an intelligent appraisal of the chances of success at both the trial and appellate levels. This is far from easy. One way to accomplish this would be to research what has happened with other similar cases in the specific district and the various divisions thereof. The investment of this time will prove well worth the effort as the case moves forward.

Notwithstanding that the path to the end of the forest through the thicket appears to be unclear, what does seem not to be obscure is that a serious effort to pay close attention to detail and a strict application of the appropriate provisions of 425.16, 425.17 and 425.18 will often ensure the outcome designed by the statutes, if the facts of the case satisfy the statutory requirements. Instead of treating statutory application as if it were an erector set with flexible connections and supports, the statutes should be strictly construed by counsel in advance of filing the motion. This requires investing the time as far in advance as possible to become fully informed, making an objective determination as to potential success, and taking nothing for granted.

Although admittedly without any guarantees, due to the idiosyncrasies of trial and appellate courts in this arena, possessing detailed facts and having applicable statutory provisions locked in place, keeping in mind the requirement that such speech or conduct objected to fits within one of the categories spelled out in the relevant statute, meritless motions to strike can be avoided.

#393

Ben Armistead


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