The
POWER of SLAPP
8 Reasons to take
SLAPP very seriously
1. MANDATORY
ATTORNEY’S FEES TO PREVAILING DEFENDANT ONLY:
Defendants prevailing on a SLAPP motion (including
any subsequent SLAPP appeal) are entitled to a mandatory
award of reasonable attorney’s fees at full fair
market value - doubled in cases where the defense is
conducted on a contingent fee basis. [CCP
§ 425.16, subd. c]. Ketchum
v. Moses (2001) 24 Cal.4th 1122. Typical fee awards
range between $50,000.00 and $100,000.00. Some SLAPP
fee awards have exceeded $300,000.00. See Metabolife
v. Wornick (S.D. Cal. 2002) 213 F.Supp.2d 1220.
Plaintiff cannot recover fees unless the SLAPP motion
is shown to be frivolous. [CCP
§ 425.16, subd. (c)]
2. DEFENDANT
HAS AN IMMEDIATE RIGHT OF APPEAL FROM ORDER DENYING
A SLAPP MOTION [CCP
425.16, subd. j] The trial court proceedings are
automatically stayed pending appeal as to each cause
of action appealed. [CCP §
916].
3. AUTOMATIC
STAY ON ALL DISCOVERY - Once the special
motion to strike (SLAPP motion) under CCP
§ 425.16 has been filed, all discovery is automatically
stayed in the action until the motion is heard. There
is a very technical exception where the plaintiff is
requried to file a noticed motion with an order shortening
time to obtain limited and specified discovery prior
to hearing on the motion. [CCP
§ 425.16, subd. (g)]
4. EVIDENTIARY
BURDEN ON SLAPP MOTION IS MORE ONEROUS THAN MSJ :
Once the defendant makes a prima facie showing
that the lawsuit arises from protected speech or petition
activity, the burden shifts to plaintiff to produce
competent admissible evidence on each essential element
of each claim with little or no discovery within 60
to 90 days after the complaint is filed. Wilcox
v. Superior Court (2nd Dist. 1994) 27 Cal.App.4th 809,
820-824. Complaint must also survive demurrer and
be legally sufficient without amendment in order to
defeat an anti- SLAPP motion.
5. NO LEAVE
TO AMEND ON SLAPP MOTION: Once the defendant
files an anti-SLAPP motion, plaintiff cannot amend the
complaint (i.e. court cannot grant leave to amend).
The SLAPP motion must be evaluated based on the complaint
as originally drafted. [Simmons
v. Allstate (3rd. Dist. 2001) 92 Cal.App.4th 1068, 1073-1074].
6. PLAINTIFF
CANNOT EVADE SLAPP FEES BY WITHDRAWING OR DISMISSING
ACTION AFTER SLAPP MOTION HAS BEEN FILED:
If Plaintiff dismisses action either with or without
prejudice in response to a SLAPP motion, the court is
required to hear the motion on the merits and determine
the prevailing party for purposes of awarding attorney’s
fees and costs. Liu
v. Moore (2nd Dist. 1999) 69 Cal.App.4th 745, 749-752.
7. DEFENDANT
ENTITLED TO COLLECT SLAPP FEE AWARDS WHILE PLAINTIFF'S
APPEAL IS PENDING UNLESS PLAINTIFF PUTS UP A BOND.
Dowling
v. Zimmerman (4th Dist. 2001) 85 Cal.App.4th 1400, 1426-1434.
Mr. Moneer represented the prevailing defendants in
Dowling.
8. SLAPP THRESHOLD
ANALYSIS IS NOVEL AND EXCEEDINGLY COMPLEX: Since
the anti-SLAPP law was first enacted in 1993, it has
been interpreted by over 130 published appellate cases,
including 7 from our High Court. The statute has also
been amended three times. Virtually any speech or petition
based civil cause of action can qualify for treatment
under the anti-SLAPP statute except those falling under
exceptions specifically delineated in CCP § 425.16,
subd. (d) and CCP §
425.17. See infra.
Click here to go directly to: "Avoid
Malpractice by Spotting SLAPP issues early on"
Types of claims "typically"
subject to anti-SLAPP scrutiny.
| 
