Published Articles
S.F. Daily Journal -
- Jun 5, 2002
Intent to Chill
Four Cases Before California's High Court Raise the
Issue of Intent On the Part of Plaintiffs Who File SLAPP
Suits
By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - One case arose out of a rent freeze
dispute involving mobile home parks. Another stems from
a breach of contract claim in an investment deal gone
bad. A third pits a consumer group concerned about water
pollution against a chain of gas stations. In each of
these cases, scheduled for argument Thursday in Los
Angeles before the California Supreme Court, one party
claims to be the victim of Strategic Litigation Against
Public Participation, also known by the acronym SLAPP.
Originally enacted in 1992, California's anti-SLAPP
law was designed to combat defamation claims and other
suits intended to silence or retaliate against the exercise
of free speech or petition rights. The law allows judges
to quickly dismiss meritless retaliation lawsuits and
award attorney fees to the targets of such suits. Many
citizen activists and journalists have used the anti-SLAPP
law to win dismissal of suits filed by big business
plaintiffs who were attempting to punish or harass them
in response to criticism. But a growing number of detractors,
including some sitting judges, say aggressive litigants
have perverted the anti-SLAPP law by using it to thwart
those whom it was meant to protect. Attorneys are now
looking to the Supreme Court to further clarify the
threshold for triggering the anti-SLAPP law, Civil Code
Section 425.16, which already has been the subject of
at least 60 published appellate decisions and two high
court opinions in 10 years. The three cases scheduled
for oral argument Thursday morning all revolve around
the issue of intent - specifically, whether Section
425.16 requires a purported SLAPP victim to prove that
the plaintiff intended to chill speech. If the high
court interprets the statute broadly, defendants will
be able to prevail on anti-SLAPP motions without having
to show evidence that the underlying plaintiff's action
chilled or was intended to chill the defendant's exercise
of constitutional rights. On the other hand, if the
high court adopts a more restrictive view of the law,
plaintiffs lawyers will gain an advantage in fending
off anti-SLAPP motions because defendants will have
the burden of showing the motive behind the underlying
suit. A fourth case, scheduled for Thursday afternoon,
is only indirectly concerned with SLAPP litigation.
At issue is whether a trial court's rejection of an
anti-SLAPP motion automatically dooms a subsequent effort
by the same defendant to bring a malicious prosecution
claim. The cases will be argued in the following order:•Equilon
Enterprises LLC v. Consumer Cause Inc., S094877, arose
from an effort by a private group called Consumer Cause
to sue over alleged water pollution violations by Equilon,
which operates Shell and Texaco gas stations in Southern
California. After Consumer Cause gave notice that it
intended to sue Equilon for discharging toxic chemicals
into groundwater, Equilon responded with a suit alleging
that Consumer Cause's notice was inadequate. A trial
court dismissed Equilon's suit, finding it was a SLAPP
intended to chill Consumer Cause's public interest activity,
and the 2nd District Court of Appeal in Los Angeles
affirmed. The Supreme Court accepted the case for review
in April 2001.•City of Cotati v. Cashman, S099999,
grew out of an attempt by mobile home park owners to
challenge a local ordinance imposing rent control at
the city's three parks, which are occupied primarily
by elderly residents on fixed incomes. The owners sued
in federal court challenging the ordinance as unconstitutional.
In response, the city of Cotati filed suit in state
court seeking a declaration that the ordinance was lawful.
The owners then filed an anti-SLAPP motion alleging
that the city's suit was an attempt to prevent them
from having their own day in federal court. The trial
judge agreed and threw out Cotati's state court action,
but an appellate court restored the suit after concluding
it was a legitimate attempt to sort out the legality
of the rent control law. The Supreme Court accepted
the case for review in October 2001.•Navellier
v. Sletten, S095000, stems from a dispute over an agreement
that Louis Navellier entered into with Kenneth Sletten
and others to be advisers for Navellier Investment Fund.
As part of the agreement, Sletten and other trustees
signed a release of claims form. When Navellier pursued
a federal court action against Sletten, Sletten filed
counterclaims for breach of contract and argued the
release was invalid. In a separate state complaint,
Navellier alleged that Sletten committed fraud as well
as breach of contract. Sletten then filed an anti-SLAPP
motion, contending that Navellier's state complaint
was retaliation for Sletten's federal counterclaim.
The trial judge rejected the anti-SLAPP motion, finding
that each party was using the federal and state courts
fairly, and the 1st District Court of Appeal in San
Francisco affirmed. The Supreme Court accepted the case
for review in April 2001 on the same day it granted
review to Equilon.•Wilson v. Parker, Covert &
Chidester, S097444, involves a group of school teachers
and administrators who won a court-ordered permanent
injunction prohibiting harassment by the Mexican Political
Association and five of its members. The association
appealed, arguing that the teachers' action amounted
to a SLAPP, but the anti-SLAPP motion was denied. About
one year later, the association sued the teachers and
attorneys, asserting malicious prosecution and other
causes of action. Most of that suit was dismissed on
demurrers. The 2nd District affirmed the dismissal of
the malicious prosecution claim, holding that the denial
of the anti-SLAPP motion demonstrated that the teachers
had good cause to seek the injunction in the first place.
The Supreme Court accepted the case for review in June
2001. Attorneys who represent litigants in Thursday's
cases say courts clearly are concerned about the steady
rise in SLAPP litigation in recent years. "At the
practical level, what's really at stake is there has
been a proliferation of anti-SLAPP motions that seems
to have gone beyond what the Legislature was envisioning
when it passed the statute," said R.S. Radford
of Pacific Legal Foundation, a Sacramento-based legal
advocacy group that mainly supports free enterprise
and property rights. Radford said that despite his philosophical
objections to the anti-SLAPP law, he supports the Cotati
mobile home park owners who are using it for the broader
purpose of defeating rent control legislation. As a
result, in Thursday's SLAPP cases, the conservative
Pacific Legal Foundation has joined forces with liberal
champions of free speech, including the American Civil
Liberties Union and the California Newspaper Publishers
Association. In amicus curiae briefs, all these groups
are urging the high court to follow the plain language
of Section 425.16 and not impose restrictions that make
it harder to win anti-SLAPP motions. "The anti-SLAPP
statute has been a very powerful procedural tool for
the media to dispose of unmeritorious defamation claims
and other claims against the media," said Karl
Olson, of Levy, Ram, Olson & Rossi in San Francisco,
who represents the publishers association. "The
anti-SLAPP statute protects free speech, and the media,
of course, stand on the front lines of people who are
engaging in free speech." Like other attorneys
who represent SLAPP defendants, Olson argues that imposing
"intent to chill" requirements on the anti-SLAPP
law will give too much discretion to trial judges when
they make final rulings. "You add a kind of subjective
inquiry into the statute and you make it easier for
a judge to deny an anti-SLAPP motion," he said.
Radford agreed, saying an intent to chill requirement
"portends the worst of all possible worlds where
no particular defendant will be able to know, 'Will
I be able to get this complaint dismissed under the
anti-SLAPP statute or not?' " But attorneys on
the other side of the issue say it would be a mistake
to treat a plaintiff's motive as irrelevant in SLAPP
analysis. Donald Lincoln of San Diego, who represents
the city of Cotati, said his case seems to turn the
SLAPP law on its head. "Your quintessential SLAPP
suit is by a wealthy person or organization trying to
defeat the other side not on the merits, but with the
burden of a collateral lawsuit and the intimidation
of large damages," he said. But in Cotati, he said,
it's the park owners aligned with the heavily endowed
Pacific Legal Foundation against a tiny municipality.
He added that the park owners have acknowledged spending
$100,000 at the trial level, which doesn't include the
cost of appealing the case to higher courts. "We
have a strange situation where the litigant in the economically
superior position is using delay and trying to burden
the city," he said. "It's a perversion of
the anti-SLAPP statute." The 1st District Court
of Appeal concluded that the state suit filed by Cotati
could not be deemed a SLAPP because it was a legitimate
tactical maneuver aimed at moving the rent control issue
to a more favorable venue. "Were we to do otherwise,
we would be encouraging and approving the use of SLAPP
in virtually all disputes over jurisdiction and venue,"
Justice Ignazio Ruvolo wrote for the panel. Like the
city of Cotati, Louis Navellier contends that he was
hit with an unfair anti-SLAPP motion by his nemesis,
Kenneth Sletten, in the course of routine litigation.
"By no stretch of the imagination can a person's
exercise of his/her contract rights to redress a breach
be construed as an abuse of judicial process,"
wrote Navallier's attorney, Samuel Kornhauser of San
Francisco, in a Supreme Court brief. "Nor can that
right be an attempt to chill the breaching party's First
Amendment rights. The only effect such a construction
would have would be to 'chill' the rights of victims
of contract breaches." Sletten's attorneys counter
that Navellier's suit fails to satisfy the most basic
requirements for a breach of contract action and that
Sletten should not be required to prove Navellier's
bad faith in bringing the suit. "The statute is
not designed to punish plaintiffs for the 'bad motives'
in filing claims arising out of a defendant's exercise
of First Amendment rights, but to protect defendants
from meritless lawsuits that threaten to chill or burden
the exercise of those rights," wrote Ralph Alldredge
of Emeryville in a Supreme Court brief. "The chilling
effect of meritless claims arising out of protected
activities - including the expense and inconvenience
of responding to such lawsuits - is the same whether
the plaintiff has good, bad or mixed motives."
In the rapidly-evolving area of anti-SLAPP law, the
Supreme Court has thus far sided with defendants. In
1999, giving a broad reading to the law, the court ruled
by a 5-2 vote that the anti-SLAPP statute protects statements
or writings made in "any matter pending before
an official proceeding." In that case, Briggs v.
Eden Council for Hope and Opportunity, 19 Cal.4th 1106,
the court followed a 1997 move by the Legislature to
overrule contrary lower court decisions. Briggs, involving
a fair housing group sued by a landlord for defamation
and harassment, made clear that the defendant's "official
proceeding" activity need not be connected to a
public issue in order to trigger the SLAPP threshold.
In 2001, the Supreme Court issued its second SLAPP opinion,
Ketchum v. Moses, 24 Cal.4th 1122, which broadly construed
the attorney fees provision in the anti-SLAPP law. In
Ketchum, which involved a tenant sued by his landlord
for complaining to the local building inspector, the
court held that SLAPP fee awards that are contingent
on winning should be doubled to compensate attorneys
who take the risk to aggressively defend against SLAPP
suits. SLAPP defendant attorneys say these decisions
bolster their hopes going into Thursday's oral arguments.
"The basic perspective is that the Supreme Court
majority will see exactly the same things at issue [in
Thursday morning's cases] as in Briggs," said Mark
Goldowitz, director of the Oakland-based California
Anti-SLAPP Project and a leading authority on the statute.
Founded in 1991, the public interest group led a broad
coalition for anti-SLAPP legislation that resulted in
enactment of California's pioneering legislation to
protect against SLAPPs in 1992 as well as amendments
to strengthen the law's protections in 1997 and 1999.
The group also monitors implementation of the anti-SLAPP
statute law and assists SLAPP targets and their attorneys
with use of the law. James
Moneer, a San Diego SLAPP specialist, echoed Goldowitz's
sentiment. "If our court continues along the lines
it articulated in Briggs, I believe they will rule in
favor of the SLAPP defendant in each and every one of
these cases," Moneer said. But no one
is betting on unanimous rulings, particularly in light
of the vigorous dissent in Briggs filed by two of the
court's most conservative justices, Marvin Baxter and
Janice Rogers Brown. Baxter accused the Briggs majority
of extending the reach of the anti-SLAPP law far beyond
what was envisioned by the Legislature. "Any litigation
arising from any word uttered in a court of law, in
a legislative or executive proceeding or any 'official'
proceeding in California, will henceforth, under the
majority's rationale, automatically constitute a retaliatory
SLAPP suit," Baxter wrote. The plaintiffs attorneys
arguing Thursday's cases will be drawing on Baxter's
and Brown's concerns as they make arguments to rein
in the anti-SLAPP law with intent-to-chill restrictions.
"One reason why our case may be up before the Supreme
Court is because it exemplifies what happens if you
take the motive out" of the SLAPP analysis, Lincoln
said. "Then it becomes a free-floating land mine
that can be used to further the very purposes it was
intended to curb." The court is expected to issue
rulings in the four cases within 90 days of the arguments.
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