SLAPP Solutions Daily Journal Publications High Court Strengthens anti-SLAPP protections

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S.F. Daily Journal - - Aug 30, 2002

High Court Strengthens Anti-SLAPP Protections
In a trio of rulings, the justices say defendants do not have to prove the motive behind SLAPP suits.

By Peter Blumberg
Daily Journal Staff Writer

SAN FRANCISCO - If someone is suing just to get you to shut up, you can get the suit dismissed without having to prove the litigation had a chilling intent or effect, the California Supreme Court held Thursday in a trio of rulings that clarify the ins and outs of Strategic Litigation Against Public Participation.
Broadly construing the state's anti-SLAPP law, the high court unanimously held that a plaintiff's "subjective intent" in a SLAPP suit is irrelevant as long as the underlying basis for the suit was the defendant's exercise of protected rights, such as speech and litigation.
The court concluded that the 1992 statute will best serve its purpose of deterring suits designed to muzzle protest if defendants do not face the extra burden of having to prove the motive behind the suit or its actual impact.
"In sum, judicial imposition of a chilling-effect proof requirement would contradict the anti-SLAPP statute's plain language, undermine the Legislature's expressed intentions, and create anomalies," Justice Kathryn Mickle Werdegar wrote in City of Cotati v. Cashman, 2002 DJDAR 9950, echoing her analysis in Thursday's other unanimously decided case, Equilon v. Consumer Cause, 2002 DJDAR 9945.
James Moneer, a San Diego solo who litigates on both sides of SLAPP cases, praised Werdegar's analysis as "right on the money." She has been the author of all but one majority opinion in the six anti-SLAPP cases the court has decided since 1999.
"She did an excellent job of preserving the uniformity of this area of the law at a time when it's rapidly growing and becoming more complex," Moneer said. "Werdegar has preserved the bright-line rule and made the application of the anti-SLAPP statute more predictable for everyone. In all three cases, they kept the right standard for interpreting the threshold of the SLAPP statute."
But the court did not reach a clear consensus on defining the triggering threshold for anti-SLAPP motions, as reflected by a 4-3 vote in Thursday's third case, Navellier v. Sletten, 2002 DJDAR 9954.
In that case, involving a litigation feud between ex-business partners, the majority defined the term "arising from" in the context of Section 425.16 of the Code of Civil Procedure to mean "the cause of action is based on the defendant's protected free speech or petitioning activity."
The dissenters on the court's conservative wing, led by Justice Janice Rogers Brown, and some veteran SLAPP litigators said Thursday that the new rules laid out by the majority will turn the law upside down and punish the litigants it was meant to help.
Mark Goldowitz, of the Berkeley-based California Anti-SLAPP Project, said Thursday's holdings in Cotati and Navellier amount to "an emerging hodge-podge of jurisprudence."
"These decisions illustrate why the Legislature has been forced to repeatedly instruct the courts how to interpret California's pioneering legal remedy against SLAPPs," he said. "We may have to take a look at a legislative solution next year."
(Actually, Sacramento lawmakers are already busy trying to rewrite the SLAPP law. Thursday's rulings came out just as trial lawyers were lobbying in the Democrat-controlled state Capitol to pass a bill that would curb use of the anti-SLAPP law by corporations.)
Goldowitz took issue in particular with the court's assertion in Cotati that "a claim 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."
On the contrary, Goldowitz contended, the very purpose of the statute is to enable quick dismissal of retaliatory claims.
Cotati stemmed from a challenge to a city rent stabilization ordinance by a handful of mobile home park owners. When the owners sought declaratory relief in federal court to overturn the ordinance, the city counter-sued in state court. The owners persuaded a trial judge to dismiss the state suit as a SLAPP, but an appellate court reinstated the suit.
The Supreme Court concluded that because the fundamental basis of the state suit was to resolve the dispute over the validity of the ordinance - rather than to respond to the federal suit - the state suit is not subject to an anti-SLAPP motion.
"It is indisputably true, as the trial court observed, that City's action was filed shortly after Owners filed their claim in federal court," Werdegar wrote. "But the mere fact an action was filed after protected activity took place does not mean it arose from that activity."
R.S. Radford, of the Sacramento-based Pacific Legal Foundation, praised the outcome of Equilon, in which the court upheld the dismissal of a suit filed by an oil company consortium against an environmental group accusing gas stations of groundwater pollution.
But, like Goldowitz, Radford said the court's attempt to define how the "arising from" language in Section 425.16 triggers anti-SLAPP motions leads to absurd results in Cotati and Navellier. Radford's clients, the mobile home park owners, lost in Cotati, but Radford came out on the winning side of Equilon with the amicus brief he filed on behalf of the environmental group Consumer Cause.
"They've created a situation where the quintessential SLAPP filer - the case that all this was designed to put a stop to - can file the same sort of complaint that traditionally would be designated as a SLAPP, but draft it so that he doesn't mention what it is that defendants specifically did that caused him to sue," he said. "And now he'll skate right past the SLAPP statute."
Radford said Brown "got it right" in her Navellier dissent when she complained that the majority failed to draw the proper line to distinguish between meritorious and frivolous claims.
"Frivolous filers will gain a new bargaining chip for settlement; a threatened motion to strike, even if unsuccessful, will cost meritorious litigants time and money," Brown wrote, joined by Justices Ming Chin and Marvin Baxter.