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What is a SLAPP suit, and what is an anti-SLAPP motion?

If you are here, it is likely because you need more information about California's anti-SLAPP law, either because you need to bring such a motion, or pursued an action and now must defend against an anti-SLAPP motion. If so, the next few paragraphs will provide a good summary of this complex area of the law.

Let's begin with the terminology. A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The simple fact is that unscrupulous parties sometimes use lawsuits as a means to intimidate parties into silence. Thus, a SLAPP suit is one where the plaintiff has filed a frivolous lawsuit, not really seeking justice or damages, but to use the action to intimidate the defendant.

To be a SLAPP, the lawsuit must contain "a cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (CCP § 425.16).

The action is frivolous because the typical plaintiff who brings a SLAPP suit does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP may also intimidate others from participating in the debate.

Note that a SLAPP is an actual document (the lawsuit), not just behavior designed to silence criticism.  As an example, if a city council decided it did not like the political views of a local newspaper, and thus ordered all the newspaper racks removed from the city, that conduct is clearly designed to "silence critics", but it is not a SLAPP because no lawsuit is involved.

The most recognizable SLAPP is a defamation action, where the speech involved is privileged. For example, under Civil Code section 47, a report to a police department is privileged. We can't have a society where a criminal suspect can use a civil lawsuit as a means to intimidate a witness to a crime, so we give such reports privileged status. Therefore if a criminal suspect sues a defendant for something he reported to the police, the lawsuit would be a SLAPP, and the defendant could file an anti-SLAPP motion.

Some SLAPPs are blatant, but many are difficult to recognize, and that's why so many attorneys file SLAPP actions not realizing they are doing so. Here are summaries of some of our recent SLAPP victories, to illustrate what makes a lawsuit a SLAPP.

"If You Sue Me, I'll Sue You!"

This example repeats itself over and over, with attorneys getting their clients into serious problems, all the while thinking they are being zealous advocates.

In this particular case, our (future) client had entered into a settlement agreement with the defendant in a prior action. Two years after the settlement agreement was signed, the defendant had still not paid the damages to the plaintiff, so he retained our firm to sue to collect the money due under the agreement.

We filed an action for breach of contract (the settlement agreement). The defendant company answered the complaint, but its attorney made the terrible mistake of filing a cross-complaint, claiming that by filing the action, we had harmed the reputation of the company and disclosed the terms of the confidential agreement. The attorney, like so many attorneys in these cases, had filed the cross-complaint hoping it would intimidate our client into dropping his lawsuit. A cross-complaint can allege anything, so the defense attorney had alleged that by filing our lawsuit, we had prevented investors from investing in the company, and that had cost the company millions. Do you see how that could be effective? Our client was seeking a relatively modest sum owed under the settlement agreement, but theoretically was facing millions of dollars in damages if he continued with his action.

That cross-complaint was the quintessential SLAPP. The defendant company was not really suing for money, and knew it could never prove that the filing of a lawsuit had cost it millions, but it hoped that the threat of the possibility would persuade our client to give up his "right of redress". The defendant was suing our client for suing, and that is a SLAPP. 

You attack a SLAPP lawsuit with an anti-SLAPP motion (referred to as a "special motion to strike"), which requires the person bringing the motion to show that the action is indeed a SLAPP, and if that is accomplished, the plaintiff (here, the cross-complainant) must show that he is likely to prevail in the action. 
The court granted our anti-SLAPP motion, threw out the cross-complaint, and the company was on the hook for more than $15,000 in attorney fees.

This first example dealt with someone using a SLAPP to take away another's "right of redress". Let's look at one more example, this one dealing with the most common type of SLAPP, seeking to silence someone's free speech.

The Case of the Outraged City Council Member

In this case, our (future) client addressed a city council meeting on a matter she felt was important to the city. Specifically, the city had been rocked by some controversy involving city council members, and our client was speaking to the issue of how the newly-elected council members should go about performing their duties. To illustrate the point, she cited the example of a former council member who had taken money from special interests. The city council member in question took umbrage with the accusation that she had acted unethically, and sued our client for defamation for the comments she had made at the city council meeting. We were retained to fight the defamation action.

Remember, "SLAPP" stands for Strategic Lawsuit Against Public Participation. What better example of public participation is there than a citizen addressing their city council? Indeed, under Civil Code section 47, any comments made during a "legislative proceeding" are absolutely privileged (meaning they can never be defamatory). Better yet from the standpoint of an anti-SLAPP motion, section 425.16(e)(1) provides that statements made before a legislative proceeding are protected speech.

We filed an anti-SLAPP motion on behalf of our client, which was granted by the court. The court correctly found that the speech to the city council fell under the anti-SLAPP statute, and that since the speech was absolutely privileged, the plaintiff had no chance of prevailing. The court granted our anti-SLAPP motion, threw out the  lawsuit, and awarded our client attorney fees for bringing the motion.

Not every lawsuit that seeks to silence speech is a SLAPP.

On the other end of the scale are the defendants and their attorneys (and, sadly, some judges) who don't understand the point of the anti-SLAPP statutes and think that every action that seeks to silence speech is a SLAPP. California's anti-SLAPP law does not in any way seek to protect defamatory speech. The case law is very clear that defamatory speech is never protected.

In a recent case, for reasons we were never able to determine, a customer became very unhappy with our client, a computer software company. The customer wrote an email to over 200 of our client's customers, making false claims about the software our client had developed for him, as well as a number of other false claims about our client's business practices. We sued for defamation, seeking damages and an injunction to prevent the customer from continuing to publish the lies.

The law firm representing the customer sought to dispose of an action by way of an anti-SLAPP motion, claiming the lawsuit was a SLAPP since it sought to silence the customer's free speech. We easily defeated the motion, because the lawsuit was not a SLAPP. The fact that it seeks ultimately to "silence" the defendant from repeating his defamatory comments does not make the lawsuit a SLAPP because, again, defamatory speech is never protected. At trial, we won over $1.5 million for our client for the defamation.

The anti-SLAPP law and how it is applied.

There is currently no Federal anti-SLAPP law, but approximately 30 states have enacted such legislation. California has a unique variant of anti-SLAPP legislation which has led to a significant volume of anti-SLAPP litigation in this state. California is truly the anti-SLAPP capitol. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone, with just 341 case spread among the rest of the states with anti-SLAPP statutes. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.

California’s anti-SLAPP law is contained in Code of Civil Procedure § 425.16, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. Although called a "special motion to strike", the anti-SLAPP motion is very different from a standard motion to strike. An anti-SLAPP motion is a complicated hybrid of a number of motions, including aspects of demurrers and motions for summary judgment, with a dash of injunctive relief thrown in. When a defendant is served with a lawsuit the defendant asserts is designed to improperly silence his speech or hinder his right to seek redress, he has the option of filing an anti-SLAPP motion in the first 60 days after service (although the court can extend this deadline on a showing of good cause).

Most attorneys who don't practice in this area of the law do not realize that the 60 days begins from the filing of the most recent complaint. We recently found ourselves defending our client against an action that certainly appeared to be a SLAPP, but the allegations in the complaint were so poorly stated that we were not confident that the court could be made to understand that the plaintiff was suing to stop our client's right of redress. We demurred twice to the complaint, forcing the plaintiff to better set forth the basis for his suit. When he filed his second amended complaint -- more than six months after the action was initially filed -- the allegations were finally clear enough that we could dispose of the entire case by way of an anti-SLAPP motion.

Once filed, the special motion to strike stays any discovery. This advances the purpose of the underlying statute, which is intended to save defendants from spurious defamation actions, but at the same time it can frustrate the plaintiff with a legitimate claim, who now must show a reasonable likelihood of success in the action, with his hands tied by the discovery stay. (The plaintiff can ask the court for permission to conduct limited discovery on a showing of good cause.)

The three important anti-SLAPP statutes are set forth here, but the heart of legislation is set forth in subpart (e) of Code of Civil Prodecure section 425.16, which provides:

(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;

(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

The Two-Prong Test for Every Anti-SLAPP motion.

To win an anti-SLAPP motion, the defendant must first show that the speech in question falls under one of the four sections set forth above. But that is just the first prong of the analysis. Even if the defendant proves the speech was protected under the anti-SLAPP statute, the special motion to strike will be denied if plaintiff can show that he is still likely to prevail on the action. In other words, defamatory speech is not protected simply because it falls under one of the four sections. (Keeping in mind that speech is not defamatory if it is privileged.) If the plaintiff can make a prima facie showing that he was defamed, for example, the action will still proceed.

The least clear of the four sections, and the section that leads to the most contentious anti-SLAPP disputes, is section 4. Section 4 is a catch-all, seeking to protect " . . . the constitutional right of free speech in connection with a public issue or an issue of public interest." If you are not sure what constitutes an "issue of public interest" you are not alone. These are the words from the statute that are giving the courts the most trouble.

Same facts, different results.

Here is a typical scenario to illustrate the point. A person goes to a doctor and is very displeased with the way the doctor handles the appointment. The patient goes home and goes to, where he can post a review of the doctor. He posts that the doctor is a quack, who should lose his license. The doctor sees the post and sues the patient for defamation.

Can the patient successfully bring an anti-SLAPP motion? Is the doctor’s performance a matter of "public interest"? Most courts have found that a doctor’s performance is one of public interest, but some look at the forum and the number of people involved. Some hold that the public’s interest in this one doctor is not broad enough to be a matter of public interest, and would deny the anti-SLAPP motion on that basis, never reaching the second prong. Others hold that a doctor’s performance, discussed on this website specifically intended to provide a forum for patients to discuss doctors, would constitute a matter of public interest, and would find that defendant has met the first prong, leaving it to plaintiff to prove a likelihood of success. On that basis, the fact that the doctor was called a quack would likely be found to be merely colorful hyperbole and not defamatory.

Same facts, two different results, all based on whether the court found the statements to be a matter of public interest. Frankly, the procedural requirements of section 425.16, its interaction with other statutes such as Civil Code 47 (the statute defining what is privileged speech) and the latest definition of "public interest", which changes from week to week, are often far too challenging for a trial court judge to decipher in the limited time he or she has to consider an anti-SLAPP motion.

And a bad decision by the judge can be devastating to the defendant or plaintiff. If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending or dismissing the complaint. Unscrupulous attorneys view anti-SLAPP motions as lottery tickets. If they lose, there is no harm since the attorney fees flow only one direction. A defendant who prevails on an anti-SLAPP motion is entitled to recover his attorney fees, but a plaintiff who defeats an anti-SLAPP motion does not recover his fees unless he can show the motion was completely frivolous. So, if the motion is won, these unethical attorneys submit ridiculous invoices for the attorney fees, sometimes exceeding $100,000 for a single motion! Sadly, some judges rubber-stamp these fee applications, which then only emboldens these attorneys to behave in the same way with future motions. Aaron Morris is often retained as an expert to fight these inflated applications. Every case is different and may end with a different result, but to date in each case where Aaron Morris has been retained to offer expert testimony on fee applications, those fees have been significantly reduced.

Consult with an experienced attorney before venturing into the anti-SLAPP minefield.

As you can see, an anti-SLAPP motion can be a costly minefield if the judge fails to fully understand the law. If you are going to enter that minefield, you need an attorney who is a recognized expert in this field. You need Aaron Morris from Morris & Stone, attorneys whose primary area of practice is defamation (slander and libel) and the accompanying anti-SLAPP motions.

Call Morris & Stone for a free telephone consultation at (714) 954-0700.

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More Information About SLAPP Law and Anti-SLAPP Motions

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