SLAPP Solutions Daily Journal Publications 2001 has been a busy year for decisions involving SLAPPS

Published Articles

Los Angeles Daily Journal - Mar 4, 2002

2001 Has Been a Busy Year for Decisions Involving SLAPPs

Focus Column

By James J. Moneer

With 18 newly published decisions and two grants of review by the California Supreme Court, 2001 now officially can be dubbed the year of the SLAPP (Strategic Lawsuit Against Public Participation, Code of Civil Procedure Section 425.16). Equilon Enterprises LLP v. Consumer Cause Inc., S094877, and City of Cotati v. Cashman, S099999, are currently pending review in the high court.
The issue on review in Equilon is whether the plaintiff's intent is relevant in triggering the SLAPP threshold under Section 425.16(e). Subdivision (e) specifically describes the four acts that constitute an "act in furtherance of the right of petition or free speech in connection with a public issue." In Cotati, the issue is whether a specially moving defendant must make an additional showing under subdivision (e) that the complaint actually had the effect of chilling the defendant's First Amendment rights.
Moreover, at least two other SLAPP decisions have been published since the first of the year. Paul v. Friedman, 2002 DJDAR 1125 (Cal. App. 2nd Dist. Jan. 29, 2002); Kajima Eng'g and Constr. Inc. v. City of Los Angeles, 2002 DJDAR 1173 (Cal. App. 2nd Dist. Jan. 30, 2002).
Not since 1999 have we seen such groundbreaking changes in the rapidly evolving area of anti-SLAPP law. AB1675 in 1999 amended Section 425.16 to provide SLAPP defendants with an immediate right of appeal from orders denying special motions to strike under newly added subdivision (j) and Code of Civil Procedure Section 904.1(a)(13), which became effective immediately as urgency legislation on Oct. 10, 1999.
Secondly, our high court in Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106 (1999), greatly expanded the reach of the "official proceeding" prongs of the anti-SLAPP statute set forth in Section 425.16(e) by giving them a broad, plain-language construction that covers all litigation and petition activity, even if such activity involves issues of purely private concern. Briggs made clear that the defendant's "official proceeding" activity need not be connected to a public issue in order to trigger the SLAPP threshold.
These two changes undoubtedly transformed the Section 425.16 special motion to strike into the most powerful dispositive motion available to California civil attorneys. Recent SLAPP cases have further fine-tuned the application of Section of 425.16. While most of these cases have further expanded the statute's application and amplified its deterrent effect, others have placed limits on its reach.
Several key cases decided in 2001 have significantly built upon the expansive interpretation of Section 425.16 articulated in Briggs. Dowling v. Zimmerman, 85 Cal.App.4th 1400 (2001), and Shekhter v. Financial Indemnity Co., 89 Cal.App.4th 141 (2001), held that attorneys' communications made on behalf of themselves or their clients in connection with issues under review in pending litigation are covered by the anti-SLAPP statute to the extent that such communications comport with the plain language of subdivisions (e)(1) or (e)(2).
The rationale for these decisions is that the First Amendment right of petition protects anyone, including an attorney, who aids or assists another in petitioning the government for redress of grievances. Wilcox v. Superior Court, 27 Cal.App.4th 809 (1994). Hence, if attorneys can be sued for petitioning on behalf of their clients in prior litigation, this would have a chilling effect on the client's right of petition because attorneys would be reluctant to take on such cases, particularly on a contingency-fee basis, without the protection of Section 425.16.
Shekhter further stands for the proposition that special motions to strike are directed toward individual causes of action in complaints and cross-complaints for purposes of dismissal and fee awards. Dowling significantly strengthened the bite of the anti-SLAPP statute by requiring a SLAPP plaintiff to deposit a bond or undertaking with the court as security for attorney fees awarded under Section 425.16(c) in order to stay enforcement of a judgment for attorney fees pending appeal from an order granting a special motion to strike.
Simmons v. Allstate, 2001 DJDAR 10965 (Cal. App. 3rd Dist. Oct. 12, 2001), further tightened the statute's grip on SLAPP plaintiffs by making clear that, unlike demurrers, no leave to amend can be granted on a special motion to strike. In Ketchum v. Moses, 24 Cal.4th 1122 (2001), the high court broadly construed the anti-SLAPP fee provision set forth in subdivision (c) in a manner that immensely amplified the deterrent effect of the statute on the filing of SLAPP suits.
Ketchum engaged in a detailed economic analysis of law in holding that any portion of a SLAPP fee award that is contingent on prevailing can and should be doubled to compensate the attorney for contingent risk assumed and to give competent private attorneys the incentive to represent indigents in aggressively defending against abusive SLAPP suits.
More recently, Chavez v. Mendoza, 2001 DJDAR 13218 (Cal. App. 4th Dist. Dec. 24, 2001), made clear that all malicious-prosecution claims are subject to the burden-shifting provisions of Section 425.16(e)(1) as a matter of law.
Likewise, Computer Express Inc. v. Jackson, 93 Cal.App.4th 993 (2001), held that all abuse-of-process claims are also covered by subdivision (e)(1) as a matter of law. Because all malicious-prosecution and abuse-of-process claims arise from the defendant's prior litigation activity as a matter of law, and because no public issue need be demonstrated for subdivision (e)(1) activity, these two types of claims will always trigger the SLAPP threshold.
Fox Searchlight Pictures Inc. v. Paladino, 89 Cal.App.4th 294 (2001), and Computer Express have fine-tuned significantly the mechanism by which the SLAPP threshold may be triggered under subdivision (e). In Fox Searchlight, the court held that a plaintiff cannot immunize causes of action from a SLAPP motion through a pleading tactic of combining allegations of covered activity with uncovered activity under the label of one cause of action.
Otherwise, a SLAPP plaintiff could immunize the complaint from a SLAPP motion merely by inserting the bare allegation of at least one uncovered act into each cause of action. Moreover, this analysis is consistent with the broad, plain-language construction of the statute commanded by the Legislature in subdivision (a) and echoed by the high court in Briggs.
Under subdivision (b)(1), the statute applies to "a cause of action against a person 'arising from' 'any act'" in furtherance of the right of petition or free speech as specifically defined in subdivision (e). There are no qualifying words like "solely," "primarily" or "directly" that modify the phrase "arising from."
Thus, a cause of action that "arises from" at least one subdivision (e) act of the defendant, regardless of how many other uncovered acts may be alleged in that same cause of action, is a cause of action that "arises from" the defendant's act in furtherance of the right of petition or free speech within the meaning of Section 425.16(b)(1). Such an interpretation furthers the policy of deterring meritless SLAPP suits.
The Computer Express court alluded to a subtle but important extension of the SLAPP triggering principles articulated in Fox Searchlight. In Computer Express, the court declined to apply Section 425.16 to a cause of action that incorporated by reference acts and causes of action alleged elsewhere in the complaint precisely because the acts and causes of action so incorporated failed, in and of themselves, to fit into any one of the categories of conduct described in subdivision (e).
Thus, the Computer Express court plainly suggested that a cause of action that in itself is not covered by subdivision (e) may trigger the SLAPP threshold if it unambiguously incorporates by reference conduct alleged elsewhere in the complaint that is clearly covered by subdivision (e).
This is simply a logical extension of the principle articulated in Fox Searchlight that a cause of action arising from at least one subdivision (e) "act" is covered by Section 425.16. The Computer Express court also implied that the defendant is not strictly limited to the allegations of the complaint but may adduce other admissible evidence and judicially noticeable materials in establishing a prima facie case under subdivision (e).
What one hand giveth, however, the other hand taketh away. In Kajima Engineering, the court cited Computer Express with approval but limited the circumstances by which incorporation by reference can trigger the SLAPP threshold.
Kajima specially moved to strike the city's entire cross-complaint under subdivision (e)(1) on the ground that it was filed in retaliation for Kajima's act of filing the complaint in the main action, even though only one of the 19 causes of action in the city's cross-complaint "arose from" Kajima's acts in furtherance of the right of petition. The trial court struck only the 12th cause of action as arising from defendant's acts in furtherance of the right of petition and denied the SLAPP motion as to the remaining 18 causes of action because they were not in any way based upon the defendant's subdivision (e) acts.
The Court of Appeal affirmed. The Kajima court emphasized that "a cross-complaint or independent lawsuit filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic. No lawsuit is properly subject to a special motion to strike under section 425.16 unless its allegations 'arise from' acts in furtherance of the right of petition or free speech" as specifically defined in subdivision (e).
Kajima further argued that the fact that the city's amended cross-complaint incorporates by reference the general allegations of Paragraph 28 and the 12th cause of action, which was stricken by the trial court, into other causes of action necessitates that the court dismiss those other causes of action. The court rejected these contentions on the ground that the general allegations in paragraph 28, in themselves, were not covered by subdivision (e) and, therefore, fail to implicate Kajima's right to petition or free speech.
Moreover, the trial court already had stricken the 12th cause of action, which did arise from Kajima's acts in furtherance of the right of petition under subdivision (e). Hence, the incorporation of a SLAPP triggering cause of action, which already has been stricken from the cross-complaint, cannot be used as a basis for striking other causes of action simply because it was incorporated by reference.
While Kajima places some limits on the incorporation-by-reference doctrine alluded to in Computer Express, the Fox Searchlight, Computer Express and Kajima trilogy provides strong support for the following principles of anti-SLAPP law:
• General allegations setting forth acts covered by subdivision (e) which are unambiguously incorporated by reference into other causes of action may be sufficient to trigger the SLAPP threshold as to those causes of action.
• Incorporation by reference of SLAPP-triggering causes of action which have not been stricken by the trial court into other causes of action may be sufficient to trigger the SLAPP threshold as to those causes of action. Such a rule is consistent with the broad, plain-language construction of Section 425.16 articulated in Briggs and again reaffirmed in Ketchum.

James J. Moneer represented the prevailing defendant in Dowling v. Zimmerman, 85 Cal.App.4th 1400 (Cal. App. 4th Dist. 2001). He is a San Diego attorney who practices civil and business litigation with a primary emphasis on SLAPP cases and civil appeal and writ proceedings.