Califor-niu Code of Civil Procedure $425.16:

Transcription

1 Califor-niu Code of Civil Procedure $425.16: (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. (b) (1 A cause of action against a person arising f?om any act of that person in furtherance of the person s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) Xn making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination, (c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitkd to recover his or her attorney s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney s fees to a plaintiff prevailing on the motion, pursuant to Section (d) This section shall not apply to any enforcement action brought in the name ofthe people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.

2 (e> As used in this section, act in furtherance of a person s right of petition or fiee 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. (0 The special motion may be filed within 60 days of the service of the complaint or, in the court s discretion, at any later time upon tenns it deems proper. The motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing. (g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision. (h) For purposes of this section, complaint includes crosscomplaint and petition, plaintiff includes cross-complainant and petitioner, and LLdefendant includes Lccross-defendmt and respondent. (i) On or before January 1, 1998, the Judicial Council shall report to the Legislature on the frequency and outcome of special motions made pursuant to this section, and on any other matters pertinent to the purposes of this section. (j> An order granting or denying a special motion to strike shall be appealable under Section 904. I. (k) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by or 2

3 fax, a copy of the endorsed-filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, inchding any order granting or denying a special. motion to strike, discovery, or fees. (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the infomation on microfilm or other appropriate electronic media. 3

4 California Code af Civil Procedtsre j : (a) The Legislature finds and declares that there has been a disturbing abuse of Section , the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of fieedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425,16. The Legidamre finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicia1 process or Section (b) Section does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist: (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary ar nonpecuniary, on the genera1 public or a large class of persons. (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiffs stake in the matter. (c) Section does not apply to any cause of action broubt against a person primarily engaged in the business of selling or Ieasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from my statement or conduct by that person if both o the following conditions exist: (1) The statement or conduct consists of representations of fact about that person s or a business competitor s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person s goods or services, or the statement or conduct was made in the course of delivering the person s goods or services. 4

5 (2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue. (d) Subdivisions (b) and (c) do not appiy to any of the following: (1) Any person enumerated in subdivision (b) of Section 2 of Article I of the California Constitution or Section I070 of the Evidence Code, or any person engaged in the dissemination of ideas or expression in any book or academic journal, while engaged in the gathering, receiving, or processing of infornation for communication to the public. (2) Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not Iirnited to, a motion picture or television program, or an article published in a newspaper or magazine of general circuiation. (3) Any nonprofit organization that receives more than 50 percent of its annual revenues Gorn federal, state, or local government grants, awards, programs, or reimbursements for services rendered. (e) If any trial court denies a special motion to strike on the grounds that the action or cause of action is exempt pursuant to this section, the appeal provisions in subdivision (j) of Section and paragraph (13) of subdivision (a) of Section 904,l do not apply to that action or cause of action. 5

6 STATES WllH SMPP haws AND BILLS - States w ~ ~ a plaus p - States v/ Slapp Bill.' 6

7 SLAPP LAWS lllrl OTHER STATES Arkansas De 1 aware Florida Georgia Guam Hawaii Indiana Louisiana Maine Maryland Massachusetts Minnesota Missouri Nebraska Nevada New Mexico New Y ork Oklahoma Oregon Pennsylvania Rhode Island Tennessee Utah Washington West Virginia Arkansas Code $ Delaware Code $ Florida Statutes Georgia Code I Guam Code hnotated Title 7, $ Hawaii Revised Statutes, Chapter 634F Indiana Code Louisiana Code of Civil Procedure Art Maine Revised Statutes Section Annotated Code of Maryland (HE 930) Massachusetts Chapter 23 I, Section 59H Minnesota Statutes Annotated Chap. 554 Missouri RSMo Sec, Nebraska Revised Statutes $ ,241 though ,246 Nevada Revised Statutes $ New Mexico Statutes $ and 9.2 New York Civil Rights Law 70-a and 76-a Oklahoma Statutes Annotated $ OregonRevised Statutes $ Pennsylvania Statutes $ 7707, 5s Rhode Island General Laws 9-33 and General Laws Appeals -- Participation in zoning hearing Tennessee Code Annotated through Utah Code Annotated $ Washington RCW No current or past anti-$lapp bills have been identified 7

8 States with Anti-SLAPP Bills (Carwent or Previous) Arizona Colorado Connecticut Illinois Kansas Michigan New Hampshire New Jersey Texas Virginia Prior : Prior : Prior : Czirrenf Prior ; Prior : Priw : Prior : Prior : Prior : Prior 1997: Prior : PY~OP Prior : Prim SB 1498 HE 1192 I None m 7374; HB 1026; SB 182; SB 248 SB 168 (2003) HB 4315 SI3 2x7 SB 1195 (2004) HI HI3 5592; HB 5593; HI3 5594; HJ3 5595; HE3 5596; MB 5597 None SB 661 None SB 745; AB 1545 la3 329 (2005) HI3 1319; "IB 2488; EIB 2723; HI None SB 424 8

9 First Step of the Anti-SLAPP Analysis: Is this a matter arising from any act of that person in hfirrtherance of the person s right of petition or free speech under the United States or California Constitution in connection with a public issue? Four ways to meet this test: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any ather 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) ox 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. First two options are fairly straightforward; the third and fourth options are most frequently invoked and also where the most questions arise. 9

10 RCvero and Its Distlllatiorr of Cases Addressing Vublic Interestgy Prong: In 2003, a California Court of Appeal organized the different cases applying the public interest prong to establish categories of statements that are in connection with a pubiic issue or an issue of public interest. Aivero v. American Fedmatiora of State, Co~mty & Municipal Emplqvees, AFL-CIO, 105 Cal. App. 4th 913 (2003) Rivem, who supervised eight janitors, was terminated from his job, after which the Union distributed a flyer making allegedly defamatory statements. In response to Rivera's complaint alleging libel and related torts, the Union filed an anti-slapp Motion. Court held that matter was not a public issue or an issue of public interest, after distilling California cases that have addressed that issue. Court explained: o None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity in the public eye.., conduct that could directly affect a large number of people beyond the direct participants... or a topic of widespread, public interest..,. Here, the Union s statements concerned the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were Rivero and the eight custodians. Rivero s supervision of those eight individuals is hardly a matter of public interest. Criticism is not a public issue just because it involves allegedly unlawful workplace activity. [Ilf the Union were correct, discussion of nearly every workplace dispute would qualify as a matter of public interest. 10

11 Cases that Have Followed Rivero: 107 Cal. App. 4th 595 (2003) e Court held that claims that a product offers The All-Natural Way to a Fuller, More Beautiful Bust! do not constitute speech on a matter of public interest. Court did not cite Rivero but its conclusion is consistent with Rivero s conclusion. * Court rejected argument that public interest prong met because herbal dietary supplements are matter of public interest, explaining: If we were to accept Trimedica s argument that we should examine the nature of the speech in terns of generalities instead of specifics, then nearly any claim could be sufficiently abstracted to fall within the anti-slapp statute. * Intent of statute is to encourage continued participation in matters of public significance and this does not extend to advertising of particular commercial product. ComnzonweaM Enerw v, Investor Data Exchnvage, 1 10 Cal. App. 4th 26 (2003) a Court held that telemarketing pitch made on behalf of firm that sells information was not made in connection with public issue or issue of public interest. * Court adopted Rivero s %wee general categories of cases fitting the prong. a Court explained: Trimedica and Rivero effectively stand for the rejection of what might be called the synecdoche theory of public issue in the anb-slapp statute. The part is not synonymous with the greater whole. 11

12 Lhr Charms v. Int I Brotherhood of Eke. Workers, Local 45, 1 10 Cal. App. 4th 107 (2003) Court held that statements by Union followbg plaintiff s termination from employment as assistant business manager for alleged financial mismanagement were not public issues or issues of public interest. 0 After discussing fivero and fact that in most cases, issue is of widespread importance, Court distinguished cases that involve smaller, discrete portion of population. Court held: [I]n order to satisfy the public issuelissue of public interest requirement of subdivisions (e)(3) and (4) of the anti-slapp statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance. 110 CaI. App. 4th 1122 (2003) * Court held that allegations that defendant defamed plaintiff by stating that plaintiff stole valuable collector s item from defendant were not public issues 01 issues of public interest. Court agreed with Rivero, explaining that defendant s dispute with plaintiff was only a private dispute between private parties. a Court explained: o The statute does not provide a definition for an issue of public interest, and it is doubthl an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest. A few guiding principles may be derived h m decisional authorities. First, public interest does not equate with mere curiosi ty... Second, a matter of public interest should be something of

13 concern to a substantial number of people... Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest... Third, there should be some degree of closeness between the challenged statements and the asserted public interest...; the assertion of a broad and amorphous public interest is not sufficient.... Fourth, the focus of the speaker s conduct should be the public interest rather than a mere effort?o gather ammunition for another round of [private] controversy..... #. Finally, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure,... A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people... Court rejected argument that criminal activity is always a matter of public interest. &we## Y. Capitol One Bank, I 13 Cal. App. 4th 805 (2003) * Court held that credit card solicitations are not statements in connection with public issue or issue of public interest. * Court reiterated Rivero s three general categories of cases falling within the public interest prong. (0 We find that to extend the protection of section to credit card solicitations would subvert the intent of the Legislature in enacting section , which was to short-circuit suits filed for the purpose of deterring activists and other citizens from exercising their constitutional right to speak and petition the government for redress of grievances. Because solicitations were designed solely for purpose of commercial activity, they did not fall within ambit of anti-slapp statute. 13

14 Wilbmks v. Wok, 12 1 Cal. App. 4th $83 (2004) 1 Court held that statements made by book author against viatical settlements brokerage and its owner were made in connection with issue of public interest. Court adopted Rivero categories and Du Charme requirement of ongoing public controversy, explaining: o The most commonly articulated definitions of statements made in connection with a public issuc focus on whether { 1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest.... As to the latter, it is not enough that the statement refers to a subject of widespread public interest; the statement must in some mamm itself contribute to the public debate..., m Court held statements regarding plaintiffs business practices did not meet this test because plaintiffs are not in the public eye and their business practices do not affect a large number of people, nor are they topics of widespread interest. 8 Court held that statements about viatical industry, which were essentialiy consumer protection information, did meet this test. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefme, were directly connected to an issue of public concern. Thornas v. Quintero, 126 Cal. App. 4th 635 (ZOOS) Court held that defendants actions in demonstrating and leafletting against plaintiff s alleged practices as a landlord of multiple rental units, were public issues or issues of public interest. Court reiterated cases discussed above, but also discussed earlier cases that provided an expansive interpretation of the issue of 14

15 public interest prong. Court held that in light of the statute s mandate that we construe the law broadly so as to encourage continued participation in matters of pubiic significance... we conclude that Quintem s activities here were protected under section , subdivision (e)(3), Key to Court s decision was that Quintero acted in conjunction with planned demonstrations, and that contemporaneous efforts were being made to find solutions to disputes. 15