SLAPP Solutions Daily Journal Publications No-Win situation, opposing a SLAPP motion is time-consuming and expensive

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Daily Journal - - Aug 4, 2000

No-Win Situation
Opposing a SLAPP Motion Is Time-Consuming and Expensive

By James J. Moneer

Because unsuccessful opposition to a special motion to strike invariably visits fatal and costly consequences upon civil plaintiffs and cross-complainants, it pays to become familiar with the procedural mechanics of the California anti-SLAPP statute set forth in Code of Civil Procedure Section 425.16.
The term SLAPP is an acronym for Strategic Lawsuits Against Public Participation. The main purpose of a special motion to strike is to swiftly expose and dismiss meritless civil lawsuits at an early stage in the litigation so that the sacred rights of petition and free speech are not chilled through costly and oppressive litigation that lacks merit. Section 425.16(a); Wilcox v. Superior Court, 27 Cal.App.4th 809 (1994). Special motions to strike under Section 425.16 apply to any civil cause of action that arises out of the defendant's petition or free-speech activity in connection with a public issue as defined in subdivision (e), broadly construed. Section 425.16(a); Church of Scientology v. Wollershiem, 42 Cal.App.4th 628 (1996). SLAPP motions challenge both the legal and evidentiary sufficiency of the complaint at an early stage in the litigation without discovery. Section 425.16(b),(g); Wilcox.
In general, the defendant makes a special motion to strike and the plaintiff opposes it. The statute, however, is not limited to striking complaints. Subdivision (h) also authorizes special motions to strike cross-complaints and petitions. Under subdivision (e), a special motion to strike may be directed toward an entire civil complaint or any individual "cause of action" therein. Under subdivision (f), the motion must be made within 60 days after service of the complaint. The court, however, retains discretion to allow the filing of a late SLAPP motion when the interests of justice would be served thereby.
In representing a party opposing a special motion to strike, the attorney should advise the client that even if opposition is ultimately successful on appeal, the client is very likely going to spend tens of thousands of dollars in attorney fees and wait a minimum of one to two years just to begin discovery in the case. Alternatively, the contingency-fee attorney will be forced to expend significantly more time and effort than originally anticipated.
Regardless of how the trial court rules on the motion, an appeal is virtually guaranteed because SLAPP defendants now have an immediate right of appeal from orders denying special motions to strike under newly enacted Section 425.16(j) and Code of Civil Procedure Section 904.1(a)(13). Once the notice of appeal from such an order is filed, the proceedings in the trial court are automatically stayed pursuant to Code of Civil Procedure Section 916. When a special motion to strike is made on behalf of a defendant, however, the movant need not worry about costs or consequences because the anti-SLAPP procedure is akin to an early summary-judgment motion with a nuclear warhead attached. Once this lethal procedural weapon is launched, the opposition immediately becomes subject to a plethora of tight procedural constraints.
Under subdivision (g), the mere filing of a special motion to strike triggers an automatic stay on all discovery until notice of entry of order ruling on the motion is served. To make matters worse, the mandatory provision for reasonable attorney fees under subdivision (c) is one-sided. If the defendant prevails on special motion to strike in the trial court, the effect of such a ruling not only subjects the complaint to complete dismissal with prejudice but also results in a mandatory award of reasonable attorney fees and costs against the plaintiff. Section 425.16(b)(1),(c); Robertson v. Rodriguez, 36 Cal.App.4th 347 (1995). If, however, the plaintiff successfully opposes a special motion to strike, mandatory attorney fees are not available. Instead, Section 425.16(c) provides that a Code of Civil Procedure Section 128.5 motion is the plaintiff's only recourse for recovering attorney fees and costs. While the consequences of unsuccessful opposition for the SLAPP plaintiff are often devastating, the reward for success is a bare minimal remand back to the trial court some two years later.
In sharp contrast, the cost of failure for the SLAPP defendant is, in most cases, negligible, while the reward for prevailing is typically ideal (i.e., complete and early dismissal of an entire lawsuit at the plaintiff's expense). If the defendant fails to make a prima facie case under any one of the four subdivision (e) prongs, the SLAPP motion must be denied as a matter of law without further inquiry. Wilcox. If, however, the defendant makes a prima facie showing that satisfies any one of the four threshold criteria, the burden shifts to the plaintiff to establish a probability of prevailing on the merits of each claim with admissible evidence. Wilcox.
The checklist set forth below is designed to spot potential SLAPP issues long before disaster strikes. A pre-filing SLAPP analysis allows the attorney to intelligently advise the plaintiff, consider ways to plead around the SLAPP threshold criteria and prepare to defeat a SLAPP motion if one is actually filed:
*Do any causes of action in the complaint or proposed complaint arguably arise out of the defendant's oral or written statements or writings? If not, subdivisions (e)(1) through (e)(3) can be readily eliminated as potential grounds for making a SLAPP motion. In such cases, the attorney should consider the remote possibility that subdivision (e)(4) "conduct" is arguably implicated.
*Were the defendant's communications arguably "made in, or in connection with" an issue under review or consideration in an "official proceeding" before a government agency? If so, such a showing will, in most cases, be sufficient to trigger the SLAPP threshold. If not, subdivisions (e)(1) and (e)(2) can be eliminated as possible grounds for making a special motion to strike. The first two clauses of subdivision (e) apply regardless of whether the communications were made preparatory to, or during the course of, an "official proceeding," so long as the communications are "rationally connected" to an issue under consideration or review in that proceeding. Dove Audio. It is imperative to note that the high court has broadly construed the petition prongs of the statute to mean that there is no separate public-issue requirement for making a prima facie case under subdivisions (e)(1) or (e)(2). Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106 (1999).
*Does the complaint arguably arise out of the defendant's "conduct in furtherance of" the right of petition? If so, a legitimate ground for making a SLAPP motion may exist.
*Does the complaint arguably arise out of the defendant's free speech in connection with a public issue or an issue of public interest? If so, such a showing will, in most cases, trigger the SLAPP threshold. If not, there are no grounds for the motion.
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 each of the following conditions are met:
*The plaintiff's attorney is highly confident that opposition to the motion will ultimately be successful in the appellate court.
*The provable damages substantially outweigh the costs of successful opposition.
*The plaintiff either has the financial resources to oppose the motion at both the trial and appellate levels or has an attorney who is willing to do the extra work on a contingency-fee basis.
*The one- to two-year delay generated by the appeal will not prejudice the plaintiff's case.

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