DON T GET SLAPPED IN COURT W

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1 DON T GET SLAPPED IN COURT What Every Litigator Needs To Know About The Anti-SLAPP Statute (C.C.P. sec ) By: Lawrence A. Strid, Copyrighted to the OCTLA Publication The Gavel, as printed in the Fall 2005 Issue FALL 2005 ISSUE Since being passed by the Legislature in 1992, there has been a steady increase in what are generically referred to as anti-slapp m otions to strike complaints, as brought pursuant to C.C.P. sec There has also been a groundswell in appeals from the rulings on such motions, which have frequently become reported decisions in the California appellate courts, the California Suprem e Court, and even Federal appellate courts. The probability for an appeal from the rulings on such motions is no doubt in response to the complaint being stricken and dismissed, should the motion be granted, plus the spectre of attorney s fees to be assessed against the non-prevailing party to the m otion. Many civil litigators have yet to fend off such a motion in the course of their practice, much less bring such a m otion on their own initiative on behalf of a defendant or cross-defendant. Because of the potentially drastic consequences that ensue from being on the wrong side of an anti-slapp motion, it behooves every litigator to have fam iliarity with the statute and its possible repercussions to their clients. SLAPP is the acronym for Strategic Lawsuits Against Public Participation. As the opening provision of C.C.P. sec (a) declares, the Legislature in enacting the statute was concerned over a perceived increase in lawsuits that were being filed with their prim ary objective being that of stifling the constitutional rights of certain defendants to free speech on m atters of public interest and petition of grievances to public agencies. Accordingly, if a cause of action in a lawsuit is related to an exercise of the defendant s right of free speech in regard to a public issue or a petition for redress of grievances under either the United States or California constitution, then that cause of action is vulnerable to a special m otion to strike under the statute, unless the plaintiff can establish the probability that they will prevail on the claim despite such a connection. Under C.C.P. sec (b)(2), the trial court makes this ruling based upon the pleadings and the supporting and opposing affidavits and declarations subm itted in support of and in opposition to the motion. The Potentiality For The Motion: Certain types of causes of action have a greater potential than others for motivating the filing of an anti-slapp motion, due to the statute s requirement that the cause of action must be related to an 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. C.C.P. sec (e): Malicious Prosecution and Abuse of Process: By definition, a cause of action for MP or AOP is predicated on the defendant having availed him or herself of an action at law in an underlying legal proceeding. Filing a lawsuit or an adm inistrative claim is most certainly a petition for redress of grievances with a public body, such that a special motion to strike would apply. Mattel, Inc. v. Luce, Forward, Hamilton

2 & Scripps (2002) 99 Cal.App.4th 1179, 121 Cal.Rptr.2d 794. MP actions predicated on underlying civil, adm inistrative, or crim inal proceedings have been fertile ground for anti-slapp motions, and given the disfavored nature of the tort itself and the fact that the motion will normally be filed without discovery having been engaged in first can m ake the probability of the success on the motion by the defendant very great. C.C.P. sec (g) requires an automatic stay on all discovery pending the outcome of the motion, which can only be lifted by the court on a noticed motion showing good cause therefor. As the motion itself must be filed within 60 days of service of the complaint, unless the court exercises its discretion to allow a late filing of the motion under C.C.P. sec (f), as a practical matter the vast majority of such motions are heard and ruled on before discovery is resorted to. As MP causes of action have inherent problems in both burden of proof and the prospect of the losing plaintiff becoming the designated defendant in the next MP case to be filed at the courthouse, the added pitfall of a special motion to strike should be further food for thought as to those who contemplate the filing of such an action, or who are faced with defending against it. Defamation, Trade Disparagem ent, and Unfair Com petition: The genesis of these causes of action is the exercise of speech, in either verbal or written form. W hile freedom of speech does not include the right to yell fire in a crowded theater where there is no fire, to the extent the speech in question concerns a matter that is a matter of public concern or interest, or takes place in a public forum, then the plaintiff risks the defendant responding with an anti-slapp m otion. A public forum within the meaning of the statue is a place open to the use of the general public for purposes of assem bly, com m unicating thoughts between citizens, and discussing public questions. W einberg v. Feisel (2003) 110 Cal.App.4th 1122, 2 Cal.Rptr.3d 385. W hile obvious public forums would include everything from a city council meeting or a congressional hearing, other public forum s can include internet websites that accept postings [ComputerXpress Inc. v. Jackson (2001) 93 Cal.App.4th 993, 113 Cal.Rptr.2d 625]; hom eowner s association m eetings [Dam on v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 102 Cal.Rptr.2d 205]; newsletters that disseminate printed discussion on matters of common interest to a large group of the public, as opposed to publications that are designed to be viewed by only a select few [W einberg, supra, and Damon, supra]; and even public streets, sidewalks, and parks [Zhao v. W ong (1996) 48 Cal.App.4th 1114, 55 Cal.Rptr.2d 909]. The Legislature s concern over the increasing use of anti-slapp m otions to attack the exercise of free speech in the commercial context resulted in the implementation of C.C.P. sec in 2003, to exempt certain forms of commercial-related speech from the orbit of C.C.P. sec , so long as certain enum erated statutory conditions evidencing that the action is being brought for the general benefit of the public are satisfied. The Two-Fold SLAPP Analysis: Consideration of the anti-slapp motion requires an analysis of the m erits of the motion that mandates the court to first determine if the cause of action actually arises from an exercise of petition of grievances or free speech on a matter of public interest. If it doesn t, then that is the end of the analysis and the defendant loses the motion. W ang v. Hartunian (2003) 111 Cal.App.4th 744, 752, 3 Cal.Rptr.3d

3 If the cause of action does so arise, then the burden of proof shifts to the plaintiff in a second step of the analysis to prove that there is a probability that the plaintiff will prevail on the claim. C.C.P. sec (b)(1). If the plaintiff carries this burden of proof, then the determination thereof is not admissible as evidence at any later stage of the case. C.C.P. sec (b)(3). In an evidence analysis somewhat similar to that pertaining to a motion for summary judgment, in assessing the com peting evidence at the second tier threshold of an anti-slapp analysis, the trial court does not weigh the evidence or determ ine questions of credibility, rather, the court must accept as true all of the evidence favorable to the plaintiff. Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 8 Cal.Rptr.3d 915; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 45-46, 134 Cal.Rptr.2d 420, 425. In fram ing evidence contained in declarations designed to either support or oppose the anti-slapp m otion, the careful practitioner should not overlook two basic procedural tools to prove their point, those being requests for Judicial Notice, either m andatory [Evidence Code sec. 451] or perm issive [Evidence Code sec. 452]; and motions to strike objectionable m aterial in opposing declarations pursuant to C.C.P. sec Judicial Notice is appropriate where proceedings and docum ents in the underlying m atter giving rise to the cause of action are relevant, and care should be taken to submit a separately filed and served Request For Judicial Notice with the relevant docum ents being copied, attached, and tabbed, along with a supporting declaration laying the foundation therefore. See Evidence Code sec. 453 for the requirem ents of notice and furnishing the court with sufficient inform ation with which to accept the Request. Motions to Strike may be contained within the body of the Opposition to the Motion, or the Reply to the Opposition to the Motion, or can be contained in a separately filed and served pleading (the latter procedure may be preferable if the page limitation [see CRC 313 (d)] of the Opposition or the Reply Memoranda is going to be a factor), and should be directed to any objectionable portion of an adverse declaration, be it hearsay, speculation, lack of foundation, opinion, or any other appropriate basis on which to raise an objection. The plaintiff will want to attack the basis for any assertion of the defendant that constitutional factors of free speech and petition of grievances are applicable, while the defendant will want to attack the basis for any assertion of the plaintiff, assuming that a second tier analysis is called for, that the plaintiff has a probability of prevailing on their case. Immediate Right Of Appeal: The non-prevailing party on an anti-slapp motion has an immediate right to appeal, which will stay the entirety of the action pending the outcome of the appeal. C.C.P. sec (j), C.C.P. sec Notice to Judicial Council: The Judicial Council is m onitoring the trend and frequency of anti-slapp motions, and therefore the statute requires that any party filing such a motion or opposing one must serve the JC by fax or with a copy of the face page of the motion and the opposition, as well as a copy of any order issued on it, including orders on attorney s fees. C.C.P. sec (k) (1). Attorney s Fees To The Prevailing Party: Aside from the ultim ate term inating order striking and dism issing a cause of action if the anti-slapp motion is granted, there is no more daunting prospect in contending with losing the motion than facing a request for attorney s fees by the prevailing party. Under C.C.P. sec (c), an award of attorney s fees to a prevailing defendant is m andatory. Pfeiffer

4 Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 123 Cal.Rptr.2d 647. It is only a question of amount. Depending upon the facts underlying the motion, the degree of effort involved, and the hourly rate and reputation of the moving party, it is not at all uncommon to see requests for attorney s fees in the upper five figure range being made and being seriously considered by a trial court, with the fees going into the six figure range if the case goes up on appeal. Should the plaintiff prevail on the m otion, either because the defendant could not establish the first tier of the analysis or because they did but the plaintiff at the second tier analysis dem onstrated a probability of prevailing in the case, then attorney s fees are also mandatory, but ONLY IF the trial court finds that the special m otion to strike is frivolous or is solely intended to cause unnecessary delay. C.C.P. sec (d). The award of attorney s fees is then made pursuant to C.C.P. sec That standard has been interpreted to mean that any reasonable attorney would agree that the motion is without m erit. Moore v. Shaw (2004) 116 Cal.App.4th 182, 199. The prevailing plaintiff s chances of showing that the m otion was frivolous or dilatory are probably enhanced when the moving defendant does not meet the first tier analysis in proving that the cause of action is actually based on petition of grievances or free speech on a matter of public interest. The vast m ajority of the reported appellate decisions on attorney fee awards in anti-slapp m otions deal with attorney fee awards to prevailing defendants, and not to plaintiffs. This is probably indicative of the fact that a large number of anti-slapp motions brought by defendants are granted, and that the award of attorney fees to a prevailing plaintiff is not a given as it is when a defendant prevails. The reasonableness of the attorney s fees is within the sound discretion of the court, which is to consider the nature of the litigation, its difficulty, the amount of time involved, the skill involved, the degree of success, and the prevailing attorney s reputation, experience, and learning. Church of Scientology of California v. W ollersheim (1996) 42 Cal.App.4th 628, 658, 49 Cal.Rptr.2d 620, The award of attorney s fees and costs must be related to the prosecution of or opposition to the motion, and not to other aspects of the case. Lafayette Morehouse, Inc. v. Chronicle Publishing Com pany (1995) 39 Cal.App.4th 1379, 1383, 46 Cal.Rptr.2d 542, 544. Careful practitioners should keep and present by declaration m eticulously item ized attorney and paralegal time on the motion. In their supporting declaration for fees, humility is not an asset and the attorney should expound on his or her professional achievem ents and experience, especially as it relates to prior anti- SLAPP motions (if any) and any prior involvement in motions and actions concerning awards of attorney s fees arising because of contract, statute, or sanctions, regardless of the nature of the other actions. Using supporting declarations from other experienced and reputable attorneys in the legal com munity, especially those with prior anti-slapp experience and which attest to the abilities of the prevailing attorney and the reasonableness and necessity of their tim e, is also a prudent tactic for the prevailing defendant to em ploy. Using declarations of other experienced and reputable attorneys to attack the claim ed reasonableness of the prevailing defendant attorney s tim e is an equally valuable tactic for a nonprevailing plaintiff to utilize in trying to contain or reduce the amount of attorney s fees being sought by a prevailing defendant. As mentioned, attorney s fees incurred on appeal can also be claim ed. Dove Audio, Inc. v. Rosenfeld, Meyer & Susm an (1996) 47 Cal.App.4th 777, 54 Cal.Rptr.2d 830.

5 Avoidance By Dismissal: Some plaintiffs may dismiss the action in an attempt to avoid a defendant s anti- SLAPP motion and a possible award of attorney s fees, but this doesn t avoid the motion if the defendant moves forward with it. The trial court retains jurisdiction to entertain the anti-slapp motion, even if the complaint or cause of action is voluntarily dism issed prior to the m otion being heard. ecash Technologies, Inc. v. Guagliardo (Central District CA 2000) 136 F.Supp.2d 1056; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 123 Cal.Rptr.2d 647. Conclusion: Appellate decisions pertaining to the anti-slapp statute are expanding exponentially, and practitioners need to be aware of the potential for such motions given the facts that give rise to any given cause of action they are contemplating on behalf of their client. The potential of such a motion being filed by a defendant should be carefully considered by a plaintiff s practitioner who is considering bringing a legal action that could raise the requisite constitutional issues, as the motion in the hands of a defendant is not only a shield, but a sword given the mandatory attorney s fees provision.