SLAPP Solutions Daily Journal Publications Analyzing Potential SLAPP Problems

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California Lawyer - Nov 1, 2000
SLAPP Suits
Analyzing potential SLAPP problems

By James J. Moneer

The California Anti-Strategic Lawsuit Against Public Participation (SLAPP) statute (CCP §425.16) was enacted in 1992 as a deterrent to the filing of meritless lawsuits designed to discourage citizens from exercising their petition and free speech rights or to punish them for doing so. It has been amended twice and interpreted by more than 25 published opinions. Still, many plaintiffs attorneys seem unaware that it can visit costly, even fatal, consequences on their clients' suits without warning.

The statute refers to SLAPP suits as claims "arising from any act in furtherance of the right of petition or free speech in connection with a public issue." Most SLAPP claims appear in the guise of defamation, fraud, emotional distress, and a variety of business tort claims, but the sine qua non is their lack of merit. Wilcox v Superior Court (1994) 27 CA4th 809. However, while the anti-SLAPP statute protects only free speech activity made in connection with a public issue, it covers all petition- and litigation-related activity. For example, one case broadly interpreted the statute to protect activity aimed at redressing purely individualized wrongs as well as litigation involving important public issues. Any activity protected by the litigation privilege of Civil Code section 47(b) is also covered by the anti-SLAPP statute. Briggs v Eden Council for Hope and Opportunity (1999) 19 C4th 1106, 1119-1121.

The statute authorizes the making of a special motion to strike, which may be aimed at an entire complaint, cross-complaint, or any cause of action in it. The motion must be made within 60 days after service of the complaint, but the court has discretion to permit a late filing in the interests of justice. The movant must make a prima facie case that the complaint arises out of activities defined in at least one of the four prongs of section 425.16(e). Then the burden shifts to the plaintiff to establish a probability of prevailing on each claim with admissible evidence-without discovery. The mere filing of an anti-SLAPP motion triggers an automatic stay on discovery, which remains in effect until notice of entry of order on the motion is served-except that a party may apply for "specified" discovery, on a showing of good cause, solely for making or opposing an anti-SLAPP motion. Church of Scientology v Wollersheim (1996) 42 CA4th 628, 646-647. The plaintiff's failure to meet its evidentiary burden results in dismissal of the complaint with prejudice.

Other costly and fatal consequences for plaintiffs' lawsuits stem from the statute's one-sided attorneys fees and appeal provisions. A prevailing defendant is entitled to a mandatory award of reasonable attorneys fees and costs. A prevailing plaintiff's only recourse is a motion under Code of Civil Procedure section 128.5, which covers frivolous or delaying actions. Once an anti-SLAPP motion is filed, the plaintiff cannot evade fees by amending or withdrawing the complaint (Coltrain v Shewalter (1998) 66 CA4th 94, 107), nor are "meet and confer" efforts or other warnings required before an anti-SLAPP motion is filed. One court recently held that the 30-day warning provided by Code of Civil Procedure section 128.7 as a condition precedent to seeking an award of attorneys fees does not apply to fees sought under the anti-SLAPP statute. Liu v Moore (1999) 69 CA4th 745, 749-751.

Recent amendments to the statute provide defendants with an immediate right to appeal an order denying a special motion to strike. Defendants have everything to gain and nothing to lose by exercising this right. The defendant who prevails on appeal is rewarded with a mandatory award of attorneys fees for work performed at both trial and appellate levels. Dove Audio, Inc. v Rosenfeld, Meyer & Susman (1996) 47 CA4th 777, 785. Furthermore, under the automatic stay provision, the defendant gains the benefit of a two-to-three-year delay just by filing the appeal. After enormous delay and expense, a prevailing plaintiff gains on appeal only costs, which are usually meager, and the right to begin discovery.

Forewarned is forearmed. In appropriate cases, attorneys for plaintiffs and cross-complainants should make a threshold analysis to spot potential SLAPP issues: (1) Do any causes of action in the proposed complaint arguably arise out of any oral or written statements? (2) If so, were these communications arguably made in, or in connection with an issue under review of or consideration in, an official proceeding before a government agency? (3) Does the complaint arguably arise out of any other conduct in furtherance of the right of petition or free speech related to an issue of public interest?

The bottom line for plaintiffs is that it generally does not pay to oppose a special motion to strike or file a cause of action that could potentially trigger the SLAPP threshold unless the plaintiff's attorney is confident that the motion can be successfully opposed; the plaintiff's provable damages substantially outweigh the costs of opposition; the plaintiff either has the financial resources to oppose the motion at both the trial and appellate levels, or the attorney is willing to do the extra work on a contingency fee basis; and the delay imposed by the automatic stay will not prejudice the plaintiff's case.

James J. Moneer is an attorney in San Diego who specializes in SLAPP litigation and appellate law.