Adkisson's

California Anti-SLAPP

Statutes and Opinions

 

SLAPP is an acronym for "Strategic Lawsuit Against Public Participation". A SLAPP lawsuit is one that is substantially devoid of its own independent merit, but instead is a mostly bogus lawsuit that is brought to deter, harass, or retaliate, etc., against a defendant who was primarily just exercising their own protected rights in the areas of freedom of speech and right to petition.

 

An Anti-SLAPP Motion to Strike is a procedure that is allowed to the defendant to get rid of such a bogus lawsuit at the outset, and with a minimum of cost and effort by the defendant. Because attorney's fees and costs can be awarded to a prevailing defendant in such a case, the Anti-SLAPP Motion to Strike also works to deter the bringing of such lawsuits in the first place.

 

Also referred to in California as a "Special Motion to Strike", an Anti-SLAPP Motion is perhaps best thought of as a "Motion to Dismiss on Steroids". The defendant who makes such a Motion need only show that their conduct falls into the area of a protected right, and the burden then shifts to the plaintiff to show a probability of succeeding on the merits. If the plaintiff cannot meet this burden, which is very difficult if protected right is involved, then the plaintiff's lawsuit is dismissed, and, as mentioned, the plaintiff may be required to pay the defendant's attorney's fees and costs in relation to bringing the Anti-SLAPP Motion.

 

Like other Anti-SLAPP laws, California follows a two-stage analysis as shown by the following diagram:

 

Alas, the California Anti-SLAPP statutes are showing their age, and have become a difficult-to-read patchwork of four statutes (CCP §§ 47, 425.16, 425.17 and 425.18) that must be read together to fully understand the statutory scheme. On top of that, California has by far the greatest number of legal opinions on Anti-SLAPP of any state — not all of which fully agree with each other — and some of those opinions have the effect of further modifying California Anti-SLAPP laws. Leaving the California court opinions aside for a moment, here are some things to be careful of:

 

First, California at CCP 425.16(b)(1) protects a "person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue". This implicitly brings into play CCP § 47 which defines "privileged publication or broadcast" to further expand the protections of § 425.16(b)(1), so you have to look at §47 too.

 

Second, at some point, the California courts were perceived as having expanded the application of § 425.16(b)(1) too far, and thus § 425.17 provides limits to § 425.16(b)(1), and so those provisions must to be read together as well. As an aside, the limits of § 425.17 should have been made part of §4125.16(b)(1) as (b)(1)(a through c) instead of a separate statute, but it is what it is.

 

Finally, defendants who won Anti-SLAPP motions in California started bringing abuse of process and malicious prosecution suits against the original plaintiffs, and this too was thought to be abusive, so a new § 425.18 was added to specifically address these actions, known confusingly as "SLAPPBACK" actions, so you have to look at § 425.18 too, but at least only in these sorts of abuse of process and malicious prosecution suits.

 

As an aside, if you are curious as to what interest that a creditor-debtor attorney like myself would have in Anti-SLAPP laws, the answer is that Anti-SLAPP is often arises in post-judgment enforcement proceedings where, for instance, the debtor gets made that his wages have been garnished and so sues the creditors (and usually his attorneys) seeking gazillions* in damages for defamation or some other bogus cause of action, usually in the hopes of forcing a settlement of the underlying indebtedness, and so creditors and their attorneys frequently have to file Anti-SLAPP motions to get these cases dismissed. The first one was simply a pain, but after about the dozenth or so one develops an interest in Anti-SLAPP if not a big fan of these laws.

 

* For instance, I was once sued for $4.7 billion (yes, billion with a "b") in Texas for defamation by a debtor who was mad about post-judgment enforcement proceedings. This was long before Texas adopted Anti-SLAPP, and although the debtor's case was dismissed, it took two years to get rid of it when an Anti-SLAPP motion would have gotten it punted in about 60 days.

 

This website explores the California Anti-SLAPP laws in depth. I suggest that you begin with Motions & Defenses (CCP § 425.16).

 

Other main sections of this website:

 

C O M M O N     P A G E     F O O T E R

RECENT ARTICLES

 

2017.01.13 ... Minnesota Court Of Appeals Boots Clear And Convincing Anti-SLAPP Burden Of Proof

2015.8.29 ... A Call For A Uniform Anti-SLAPP Act

 

UNOFFICIAL QUICK CONTENTS

 

CCP § 425.16 - Anti-SLAPP Motion

 

(a) Declaration of purpose; to be construed broadly

 

(b) Mechanics of the special motion to strike; action subject to motion; burden of proof; pleadings and evidence considered; finding not later useable

 

(c) Attorney's fees and costs recoverable; when; exclusion for some sections of Government Code

 

(d) Special motion to strike not available against government officials

 

(e) Things included in right of petition or free speech; statements and submissions to governmental authorities; public interest statements; constitutionally-protected conduct and speech.

 

(f) Deadlines for filing special motion to strike and for hearing by the court

 

(g) Stay of discovery pending ruling

 

(h) Complaint includes cross-complaint

 

(i) Appealability

 

(j) Reporting to Judicial Council; transmittal; maintenance of information

 

 

CCP § 425.17 - Legislative Findings And Declarations Regarding California Anti-SLAPP Law; Application of § 425.16

 

(a) Legislature finds abuse of Anti-SLAPP law

 

(b) Special motion to strike not available where plaintiff seek to enforce important public right; comparative benefit

 

(c) Special motion to strike not available against seller of goods or services in some contexts

 

(d) Exclusions from the exclusions of (b) and (c); dissemination of ideas; certain literary, political or artistic works, non-profits; appealability

 

 

§ 425.18 - SLAPPBack Actions; Motion To Strike; Limitations Periods; Discovery; Remedies

 

(a) Legislative purpose and intent

 

(b) Definitions of SLAPPback and special motion to strike

 

(c) Certain provisions do not apply to special motions to strike a SLAPPback

 

(d) Procedure on special motions to strike a SLAPPback; deadlines and discretion; scheduling by clerk

 

(e) Limited discovery rights

 

(f) Attorney's fees and costs if frivolous or delaying

 

(g) Appealability of special motion to strike a SLAPPback

 

(h) Where prior cause of action was illegal

 

(i) Non-applicability to public entities

 

 

CCP § 47 -- Privileged Publication Or Broadcast

 

(a) Discharging official duty

 

(b) In legislative and judicial proceedings; exceptions; with malice or without reasonable cause; intentional destruction of evidence; failure to disclose insurance policy; lis pendens

 

(c) Communications without malice; interested parties; right to know; requested information; job performance; interviews

 

(d) Fair and true reports in public journals about judicial or other governmental proceedings; exceptions; violates Lawyer Rules of Professional Conduct; breaches court order; violates confidentiality

 

(e) Fair and true reports of public meetings and publication of matter for public benefit

 

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  • Charging Orders - The confusing remedy against a debtor's interest in an LLC or partnership is explained in reference to the Uniform Partnership Act, the Uniform Limited Partnership Act, and the Uniform Limited Liability Company Act - https://chargingorder.com/

 

 

 

Contact Jay Adkisson

 

Phone: 702-953-9617     Fax: 877-698-0678     jay [at] jayad.com

 

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© 2018 by Jay D. Adkisson. All rights reserved. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction.  Questions about this website should be directed to jay [at] jayad.com or by phone to 702-953-9617 or by fax to 877-698-0678. This website is https://antislappcalifornia.com