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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 action is "strategic" and frivolous because the typical SLAPP plaintiff does not care whether he wins the lawsuit, and indeed 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.
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 SLAPP litigation in this state. California is truly the anti-SLAPP capitol, with three times the number of reported SLAPP decisions than all the other states combined.
California's anti-SLAPP Statute
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 motion to strike, the anti-SLAPP statute is a complicated hybrid of a number of motions from demurrers to motions for summary judgment, with a dash of injunctive relief. When a defendant is served with a lawsuit the defendant asserts is designed to improperly silence his speech, 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).
Once filed, the motion 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 contained 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.
What is required to win an 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. If the defendant proves the speech was protected, the 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.)
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 of " . . . 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.
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 Vitals.com, 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 a 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, 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, is 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.
A bad decision can be devastating.
A bad decision by the judge can be devastating to the defendant or plaintiff. If the special motion is denied when it should have been granted, then the defendant remains hostage to the action. In an effort to minimize this possibility, the statute provides that the order denying the motion is immediately appealable, but that is costly and time-consuming, which is what the anti-SLAPP statute was trying to prevent in the first place. Conversely, improperly (or properly) granting an anti-SLAPP motion will entitle the defendant to a mandatory award of reasonable attorney fees, which can be significant. And there are no "take-backs" when it comes to SLAPP suits. Once an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending or dismissing the complaint.
Any of the following types of actions (and perhaps more because the law is expanding) can be a SLAPP suit:
As you can see, many actions can result in an anti-SLAPP motion, and such a motion can be a costly and inequitable 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 Morris & Stone, attorneys whose primary area of practice is defamation (slander and libel) and the accompanying SLAPP laws. Call (714) 954-0700 for a free telephone consultation, or click "Contact Us" to submit your questions by email.
What we do for Plaintiffs (and Cross-Complainants).
-- Before the complaint is filed. The moment of truth when it comes to SLAPPs is when the complaint or cross-complaint is filed. Attorneys and parties representing themselves get in trouble by not taking the time to make certain that the complaint is not a SLAPP. Anxious to get something on file, perhaps to beat a statute of limitations, the complaint is filed with the assumption that it can be amended later. But as stated above, the complaint cannot be amended once the anti-SLAPP motion has been filed. Even if you are represented by other counsel, it is time and money well spent to allow us to review any complaint that might have SLAPP implications. Be especially cautious if your attorney elects to file a cross-complaint. Often attorneys will include claims in a cross-complaint that arise from the claims made in the complaint, which makes the cross-complaint a SLAPP.
-- After the complaint is filed. Even if you did not consult with us prior to filing the complaint or cross-complaint, so long as the defendant has not yet filed an anti-SLAPP motion, we can save you if you inadvertently filed a SLAPP.
-- When the anti-SLAPP motion is served. Of course, not all anti-SLAPP motions have merit. If you did not consult with us prior to the complaint being filed and you find yourself facing an anti-SLAPP motion, no one is better at evaluating and defending against such motions.
-- After the anti-SLAPP motion. If the motion was brought and granted, you will be facing a significant attorney fee award. We can fight the motion for attorney fees, or act as an expert witness in opposition to the fees. Of course every case is different and we cannot promise any specific result, but to date we have never failed to reduce the amount of attorney fees being sought when brought in to defend against an anti-SLAPP motion or act as an expert. A situation could arise where the attorney is demanding reasonable and appropriate attorney fees, but to date we have never seen a fee application that was not overstated. On average, when we have been retained to fight attorney fee awards, the fees being sought are five times higher than our fee bills for similar motions.
What we do for Defendants (and Cross-Defendants).
-- Before the complaint is filed. The situation does not often arise, but occasionally a defendant will receive a copy of the complaint before it is officially served, or will know the nature of the contemplated action from an attorney's demand letter. If the contemplated action is a SLAPP, we may be able to avoid the action entirely just by educating the plaintiff's counsel on what he or she is about to do. We have had a number of cases where we have notified opposing counsel that we intend to file an anti-SLAPP motion if he goes forward with the intended action. Although in some cases the threat was ignored and the complaint was filed, by providing that advance notice we were then able to argue in conjunction with our motion for attorney fees that the full amount of fees should be awarded since the attorney was advised that he was about to file a SLAPP but did so anyway.
-- After the complaint is filed. Of course, if the plaintiff has served you with a SLAPP action, we will file an anti-SLAPP motion to cut off discovery and extricate you from the action. Many attorneys will fail to see that the action was a SLAPP and may have missed the 60-day deadline to bring such a motion. If that happened with you, call us to see if we can save the defense. The 60-day deadline is not jurisdictional, meaning that you can bring the motion after the deadline upon a showing of good cause. In one instance we persuaded a court to allow the anti-SLAPP motion nearly six months after the defendant answered, resulting in a dismissal of the entire case.
-- After the anti-SLAPP motion. If you prevailed on the anti-SLAPP motion, you are entitled to recover all attorney fees incurred in bringing that motion. Because of our knowledge in this area, we present well-crafted attorney fee motions that maximize the recovery.
-- After the judgment. Although the anti-SLAPP motion gets you back your attorney fees, there are other expenses, as well as the emotional distress that comes with being sued. Having prevailed on the anti-SLAPP motion, we can then bring what is called a SLAPP-back suit to recover all of the other damages you suffered.
Call (714) 954-0700 for a free telephone consultation, or click "Contact Us" to submit your questions by email.
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