There are just three SLAPP statutes, 425.16, 425.17 and 425.18, and they continue to be a work in progress as the Legislature works out the bugs. Indeed, the statute requires that any party filing or opposing an anti-SLAPP motion must send a copy of the face page of the court document to the Judcial Council, so the use of these statutes can be monitored.
California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.
California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse of the anti-SLAPP statute (CCP § 425.16). Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct. Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.
(b)(1)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 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)In 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, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
(c)In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled 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 128.5.
(d)This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.
(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.
(f)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 terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion 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 "cross-complaint" and "petition," "plaintiff" includes "cross-complainant" and "petitioner," and "defendant" includes "cross-defendant" and "respondent."
(i)An order granting or denying a special motion to strike shall be appealable under Section 904.1.
(j)(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 e-mail or facsimile, 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, including 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 information on microfilm or other appropriate electronic media.
(a) The Legislature finds and declares that there has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16. 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 or Section 425.16.
(b) Section 425.16 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 or nonpecuniary, on the general 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 plaintiff's stake in the matter.
(c) Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of 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.
(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 apply to any of the following:
(1) Any person enumerated in subdivision (b) of Section 2 of Article I of the California Constitution or Section 1070 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 information 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 limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation.
(3) Any nonprofit organization that receives more than 50 percent of its annual revenues from 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 425.16 and paragraph (13) of subdivision (a) of Section 904.1 do not apply to that action or cause of action.
(a) The Legislature finds and declares that a SLAPPback is distinguishable in character and origin from the ordinary malicious prosecution action. The Legislature further finds and declares that a SLAPPback cause of action should be treated differently, as provided in this section, from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature's intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP (strategic lawsuit against public participation) litigation and by its restoration of public confidence in participatory democracy.
(b)For purposes of this section, the following terms have the following meanings:
(1)"SLAPPback" means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.
(2)"Special motion to strike" means a motion made pursuant to Section 425.16.
(c)The provisions of subdivisions (c), (f), (g), and (i) of Section 425.16, and paragraph (13) of subdivision (a) of Section 904.1, shall not apply to a special motion to strike a SLAPPback.
(d)(1)A special motion to strike a SLAPPback shall be filed within any one of the following periods of time, as follows:
(A)Within 120 days of the service of the complaint.
(B)At the court's discretion, within six months of the service of the complaint.
(C)At the court's discretion, at any later time in extraordinary cases due to no fault of the defendant and upon written findings of the court stating the extraordinary case and circumstance.
(2)The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.
(e)A party opposing a special motion to strike a SLAPPback may file an ex parte application for a continuance to obtain necessary discovery. If it appears that facts essential to justify opposition to that motion may exist, but cannot then be presented, the court shall grant a reasonable continuance to permit the party to obtain affidavits or conduct discovery or may make any other order as may be just.
(f)If the court finds that a special motion to strike a SLAPPback is frivolous or 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 128.5.
(g)Upon entry of an order denying a special motion to strike a SLAPPback claim, or granting the special motion to strike as to some but less than all causes of action alleged in a complaint containing a SLAPPback claim, an aggrieved party may, within 20 days after service of a written notice of the entry of the order, petition an appropriate reviewing court for a peremptory writ.
(h)A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.
(i)This section does not apply to a SLAPPback filed by a public entity.
Defamation is effected by either of the following:
Civil Code § 45 [Definition and elements of Libel]
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
Civil Code § 45a [Distinction between Libel Per Se and Libel Per Quod]
A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.
Civil Code § 46 [Definition and elements of Slander]
Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1.Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2.Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3.Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4.Imputes to him impotence or a want of chastity; or
5.Which, by natural consequence, causes actual damage.
Civil Code § 47 [Privileged statements that do not constitute defamation]
A privileged publication or broadcast is one made:
(a)In the proper discharge of an official duty.
(b)In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1)An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2)This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, "physical evidence" means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3)This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4)A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
(c)In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(d)(1)By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.
(2)Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:
(A)Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B)Breaches a court order.
(C)Violates any requirement of confidentiality imposed by law.
(e)By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.
Civil Code § 47.5 [Special rules for Peace Officers]
Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.
Civil Code § 48 [Section 47(c) malice cannot be inferred from statement]
In the case provided for in subdivision (c) of Section 47, malice is not inferred from the communication.
Civil Code § 48a [Special rules for newspapers and radio stations]
1.In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.
2.If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.
3.A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.
4.As used herein, the terms "general damages," "special damages," "exemplary damages" and "actual malice," are defined as follows:
(a)"General damages" are damages for loss of reputation, shame, mortification and hurt feelings;
(b)"Special damages" are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;
(c)"Exemplary damages" are damages which may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice;
(d)"Actual malice" is that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.
Civil Code § 48.5 [Special rules for radio and television broadcasters]
(1)The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement or matter published or uttered in or as a part of a visual or sound radio broadcast by one other than such owner, licensee or operator, or agent or employee thereof, if it shall be alleged and proved by such owner, licensee or operator, or agent or employee thereof, that such owner, licensee or operator, or such agent or employee, has exercised due care to prevent the publication or utterance of such statement or matter in such broadcast.
(2)If any defamatory statement or matter is published or uttered in or as a part of a broadcast over the facilities of a network of visual or sound radio broadcasting stations, the owner, licensee or operator of any such station, or network of stations, and the agents or employees thereof, other than the owner, licensee or operator of the station, or network of stations, originating such broadcast, and the agents or employees thereof, shall in no event be liable for any damages for any such defamatory statement or matter.
(3)In no event, however, shall any owner, licensee or operator of such station or network of stations, or the agents or employees thereof, be liable for any damages for any defamatory statement or matter published or uttered, by one other than such owner, licensee or operator, or agent or employee thereof, in or as a part of a visual or sound radio broadcast by or on behalf of any candidate for public office, which broadcast cannot be censored by reason of the provisions of federal statute or regulation of the Federal Communications Commission.
(4)As used in this Part 2, the terms "radio," "radio broadcast," and "broadcast," are defined to include both visual and sound radio broadcasting.
(5)Nothing in this section contained shall deprive any such owner, licensee or operator, or the agent or employee thereof, of any rights under any other section of this Part 2.
Civil Code § 48.7 [Special rules for reports of child abuse]
(a)No person charged by indictment, information, or other accusatory pleading of child abuse may bring a civil libel or slander action against the minor, the parent or guardian of the minor, or any witness, based upon any statements made by the minor, parent or guardian, or witness which are reasonably believed to be in furtherance of the prosecution of the criminal charges while the charges are pending before a trial court. The charges are not pending within the meaning of this section after dismissal, after pronouncement of judgment, or during an appeal from a judgment.
Any applicable statute of limitations shall be tolled during the period that such charges are pending before a trial court.
(b)Whenever any complaint for libel or slander is filed which is subject to the provisions of this section, no responsive pleading shall be required to be filed until 30 days after the end of the period set forth in subdivision (a).
(c)Every complaint for libel or slander based on a statement that the plaintiff committed an act of child abuse shall state that the complaint is not barred by subdivision (a). A failure to include that statement shall be grounds for a demurrer.
(d)Whenever a demurrer against a complaint for libel or slander is sustained on the basis that the complaint was filed in violation of this section, attorney's fees and costs shall be awarded to the prevailing party.
(e)Whenever a prosecutor is informed by a minor, parent, guardian, or witness that a complaint against one of those persons has been filed which may be subject to the provisions of this section, the prosecutor shall provide that person with a copy of this section.
(f)As used in this section, child abuse has the meaning set forth in Section 11165 of the Penal Code.
Civil Code § 48.8 [Special rules for school personnel]
(a)A communication by any person to a school principal, or a communication by a student attending the school to the student's teacher or to a school counselor or school nurse and any report of that communication to the school principal, stating that a specific student or other specified person has made a threat to commit violence or potential violence on the school grounds involving the use of a firearm or other deadly or dangerous weapon, is a communication on a matter of public concern and is subject to liability in defamation only upon a showing by clear and convincing evidence that the communication or report was made with knowledge of its falsity or with reckless disregard for the truth or falsity of the communication. Where punitive damages are alleged, the provisions of Section 3294 shall also apply.
(b)As used in this section, "school" means a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive.
Civil Code § 48.9 [Special rules for anonymous witness programs]
(a)An organization which sponsors or conducts an anonymous witness program, and its employees and agents, shall not be liable in a civil action for damages resulting from its receipt of information regarding possible criminal activity or from dissemination of that information to a law enforcement agency.
(b)The immunity provided by this section shall apply to any civil action for damages, including, but not limited to, a defamation action or an action for damages resulting from retaliation against a person who provided information.
(c)The immunity provided by this section shall not apply in any of the following instances:
(1)The information was disseminated with actual knowledge that it was false.
(2)The name of the provider of the information was disseminated without that person's authorization and the dissemination was not required by law.
(3)The name of the provider of information was obtained and the provider was not informed by the organization that the disclosure of his or her name may be required by law.
(d)As used in this section, an "anonymous witness program" means a program whereby information relating to alleged criminal activity is received from persons, whose names are not released without their authorization unless required by law, and disseminated to law enforcement agencies.
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. We were retained to fight the defamation action.
It is seldom that we are presented with such a clear SLAPP suit. 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.
So let’s run the facts through the two prongs of the anti-SLAPP analysis. First, as counsel for the defendant, it was our burden to show that the speech was protected within the meaning of the anti-SLAPP statute. That was a no-brainer in this instance, since the words were spoken at a city council meeting. And since the conduct falls under a specific anti-SLAPP section of 425.16, there was no need to show that the topic was a matter of public interest. "Any matter pending before an official proceeding possesses some measure of ‘public significance’ owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights § 425.16 was intended to protect." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118.)
Our having shown that the speech was protected, the second prong of the anti-SLAPP analysis requires plaintiff to show a reasonable likelihood of success on her claim, which in this case would be impossible. Since section 47 makes speech at a city council meeting absolutely privileged, the speech by definition cannot constitute defamation.
So a slam-dunk anti-SLAPP motion, right? Not quite.
A SLAPP motion puts a stay on all discovery, which is one of the primary benefits of an anti-SLAPP motion because it keeps the plaintiff from using the discovery process as a sledgehammer to try to wear down the defendant. In this case, counsel for Plaintiff had served discovery prior to the anti-SLAPP motion, and argued that the court should permit that discovery prior to ruling on the anti-SLAPP. There is authority for the proposition that a plaintiff should be permitted to conduct discovery to determine whether the defendant acted with malice, because that takes away certain privileges under section 47. However, there is no malice exception for words spoken at a city council meeting, so no amount of discovery by the Plaintiff could have revealed information that would have defeated the anti-SLAPP motion.
Nonetheless, the court granted Plaintiff’s request for discovery, and that added two months to the process. It could have been that the court just did not understand the authorities we provided, but more likely the court was bending over backwards to give the plaintiff access to discovery, specifically because the judge knew she was going to grant the motion, and did not want Plaintiff to have any possible basis for appeal. In that sense, the judge might have done us a favor, but it is frustrating to deal with a frivolous action for an additional two months. We were successful, though, in limiting greatly limiting the discovery. The court denied Plaintiff’s request to take our client’s deposition.
As expected, the discovery revealed nothing useful to the Plaintiff. Instead, the Plaintiff attempted to argue that the conduct by Defendant was "illegal" and therefor not protected. This was another instance where there is authority for the proposition being claimed, but that legal theory had no application to the case at hand. In the case of Flatley v. Mauro, an attorney had sent threatening letters to someone, threatening to sue him if he did not pay a large settlement to a client. Normally, a letter from an attorney in anticipation of litigation would be protected speech under the litigation privilege, but the Flatley court ruled that the attorney’s letters had risen to the level of extortion, and were therefor illegal and unprotected.
Plaintiff was trying to say that our client’s speech at the city council meeting was illegal and therefor unprotected according to Flatley. And how could speech at a city council meeting ever be illegal, you ask? According to Plaintiff, it was illegal because the city council’s own guidelines state that comments should be civil, and Defendant’s comments had not been civil.
Predictably, the court understood that even if the words were interpreted to be rude, a city council’s guidelines do not amount to law, and violating them does not amount to criminal conduct. The court granted our anti-SLAPP motion, striking the defamation complaint and entering judgment in our favor. The court also awarded us over $18,000 in attorney fees against the Plaintiff.
I’ll Sue You if You Sue Me.
The next case was especially satisfying because it was not a classic anti-SLAPP case involving defamation, but we persuaded the judge that the matter fell under the anti-SLAPP laws.
In this case, our (future) client had entered into a settlement agreement with the defendant in a prior action. The settlement agreement required the defendant company to pay damages to our client, and contained a confidentiality agreement. 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 the action for breach of contract, attaching a copy of the settlement agreement. The defendant answered the complaint and also filed a cross-complaint, claiming that it was a breach of the confidentially agreement to attach the settlement agreement to the complaint. Incidentally, counsel for defendant had discussed with me his intention to cross-complain on this basis, and I had warned him that would be a really bad idea. He did so anyway.
The reason the cross-complaint was a bad idea is because it was a SLAPP. Do you see why? Remember again what SLAPP stands for – Strategic Litigation Against Public Participation. Defendant had breached the settlement agreement, so clearly we were entitled to sue for breach of that contract. That is the public participation – taking a case before a court for redress of a grievance. Defendant was suing our client for suing, claiming that it was a breach of the agreement to make the confidential settlement agreement a matter of public record. We filed our anti-SLAPP motion against Defendant/Cross-Complainant for the cross-complaint.
So let’s run this case through the two-prong, anti-SLAPP analysis. Our burden was to show that the speech was protected under the anti-SLAPP statute. The speech here was the complaint itself, with the settlement agreement attached. Filing a complaint is a specifically protected activity under the anti-SLAPP statute, and comments made in conjunction with litigation are protected under Section 47. There was no issue that our complaint was a protected activity.
That takes us to the second prong, by which the plaintiff, here the cross-complainant, must show a reasonable likelihood of success on the merits of the case, even if the speech is a protected activity. In this regard, the company argued vigorously that the breach by our client was clear – Plaintiff was required to keep the settlement confidential but had breached that obligation by attaching the settlement agreement to the complaint.
This argument showed a fundamental misunderstanding of contract law by counsel for the company. Allow me to resort to a simple analogy to illustrate the point. If I agree to sell you my watch for $100, but you never give me the $100, am I still required to give you my watch? Of course not. In legal jargon, your failure to perform is said to excuse me from my performance. In this simple example, this point of law is clear to anyone, but that is the point that counsel for the company was missing.
Our client was required to keep the agreement confidential in exchange for payment of the damages. But the company never paid the money, so our client was excused from performance. Further, to sue for breach of contract, a plaintiff must allege the terms of the agreement. Here, there was no way to allege a breach of contract without specifying the terms of that agreement. The company argued we should have sought to bring the complaint under seal so no one would ever know the terms, but there is not such obligation required under the law.
But the company had an even more fundamental issue with its cross-complaint. The elements of a breach of contract claim are (1) a contract; (2) a breach of that contract; (3) performance by the plaintiff; and (4) damages from the breach. The company was alleging breach of contract, but it had utterly failed to perform. I attached a declaration from our client saying he had never been paid, and the company could say nothing to refute that point. Thus, the company could never prevail on its breach of contract claim because it could not satisfy the performance element.
The court granted our anti-SLAPP motion, threw out the cross-complaint, and the company is on the hook for more than $15,000 in attorney fees.
Anti-SLAPP Statute Can Be Used In Federal Court
Greensprings Baptist Christian Fellowhip Trust v. Cilley
There is currently no federal anti-SLAPP statute, but that does not mean the anti-SLAPP remedy is not available in federal court. In federal diversity cases brought in California, applying California law, a defendant still maintains the right to bring a motion to strike under Civil Procedure section 425.16. But overlaying this statute onto federal procedures has created some issues.
The right to amend.
In California, it is now clear that once an anti-SLAPP motion has been filed, the plaintiff cannot amend the complaint in an attempt to fix the problems that made the complaint a SLAPP. But in the recent case of Greensprings Baptist Christian Fellowhip Trust v. Cilley, the Ninth Circuit saw things differently.
That case arose from a malicious prosecution action. The defendant filed an anti-SLAPP motion which was granted by the court, but with leave to amend. The court ruled that under the very liberal amendment standards of federal court, leave was proper.
As a side note, the decision made little sense, again illustrating that many courts struggle with the hybrid nature of an anti-SLAPP motion. Even though demurrers are not permitted in federal court, that was the standard applied by the District Court. When a demurrer is sustained because the complaint fails to allege essential elements, leave to amend is normally granted to afford the opportunity to allege the missing elements. In Greensprings, the court determined that plaintiff had failed to meet the second prong of the anti-SLAPP analysis – providing sufficient evidence to show a likelihood of success. But why grant leave to amend? If the issue is evidence, then no amount of amending will provide more evidence.
And that takes us to the next difference between state and federal court:
The right to appeal.
California’s anti-SLAPP statute provides for an immediate appeal from a denial, so the defendant did just that. But that raised another issue. Federal courts do not like interim appeals, statute or not. The Court of Appeals held that as a matter of first impression, the order granting anti-SLAPP motion to strike complaint with leave to amend did not conclusively determine disputed question of anti-SLAPP statute's applicability, and thus order was not immediately appealable. "Accordingly, we hold that we lack jurisdiction under the collateral order doctrine to entertain an appeal from the portion of a district court's order granting a defendant's anti-SLAPP motion which gives a plaintiff leave to amend her complaint."
However, the decision was a narrow one limited to the specific circumstances. The Court of Appeal confirmed that California’s right of appeal is available when immediate review is necessary to safeguard the right protected by the state’s statute. Thus, while Greensprings denied the right to appeal, it affirmed that immediate appeal is available under the proper circumstances.
Flatley v. Mauro (2006) 39 Cal.4th 299
Most attorneys would assume this conduct fell under the litigation privilege of section 47, which protects any communication made in conjunction with or in anticipation of legal action. Flatley's attorney, however, filed a lawsuit against the woman's attorney, alleging extortion, defamation and fraud. The woman's attorney responded by filing an anti-SLAPP motion, seeking to have Flatley's case dismissed. He argued that his letter was a prelitigation settlement offer in furtherance of his constitutional right to petition.
The Court of Appeal and Supreme Court both disagreed, affirming denial of the attorney's motion to dismiss. Section 425.16 “cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.” (39 Cal.4th 317.) “[W]here either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied. The rationale is that the defendant cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes” its purpose to prevent and deter lawsuits brought primarily to chill the valid exercise of free speech and petition rights. (39 Cal.4th 316.)
While normally the litigation privilege of Civil Code section 47 would protect all prelitigation related communications, “they are nonetheless not protected under the anti-SLAPP statute.” (39 C.4th 322.) The litigation privilege and the anti-SLAPP statute, though related, “are substantively different statutes that serve quite different purposes, and it is not consistent with the language or the purpose of the anti-SLAPP statute to protect” prelitigation threats constituting extortion. (39 C.4th 322.)
The court found that the defendant’s conduct constituted extortion as a matter of law. He threatened to publicly accuse plaintiff of rape and other specified violations of law unless he “settled” by paying a minimum of $1 million, of which defendant would receive 40%. The attorney threatened that he would publicize the rape story at every one of Flatley's tour dates “for the rest of his life.” “That the threats were half-couched in legalese did not disguise their essential character as extortion.” (39 C.4th 330.)
Cal.App. 1 Dist.,2011.
Grewal v. Jammu
--- Cal.Rptr.3d ----, 2011 WL 78513 (Cal.App. 1 Dist.)
This case provides a good summary of SLAPP law and the competing decisions concerning what constitutes public interest. Of equal interest is the frustration expressed by the appeal court as to how the SLAPP statutes are having the opposite effect from what was intended. Instead of providing a streamlined process to dispose of SLAPP actions, the statutes are adding an extra layer of complication and expense to all actions. Here is the case in its entirety:
Plaintiff Hardev Singh Grewal, a 73-year-old interpreter for the Alameda County Superior Court and a 39-year resident of Fremont, is a well-known member of the Sikh Temple, San Francisco Bay Area, who, he alleged, “enjoyed a good reputation ... in the Temple and in his occupation.” On two occasions in 2005 the Punjab Times published calumnious statements about plaintiff, and in 2006 he filed suit for defamation. The suit named several defendants, including Amolak Singh Jammu and A.B. Publication, Inc., the editor and publisher of the Punjab Times (when referred to collectively, the Jammu defendants). Another article followed, this stating that plaintiff referred to the Temple school as a “madrassa,” a training school for terrorists and students of the Taliban. This caused an amended complaint, and plaintiff's suit came to include four causes of action for libel.
The Jammu defendants filed a special motion to strike (Anti-SLAPP) these causes of action, a motion that was noteworthy in several respects, in that it was filed: (1) almost three years after plaintiff's original complaint; (2) despite that the Jammu defendants had filed verified answers to plaintiff's earlier complaints containing identical causes of action; and (3) despite that an earlier anti-SLAPP motion by three other defendants had been denied in an order expressly holding that plaintiff had a probability of prevailing. Beyond all that, the motion was scheduled to be heard five days before the date on which the case had long been set for trial.
Defendants' moving papers-a voluminous 206 pages, not including a request for judicial notice of thousands of pages of three Alameda County court files and the 54-page opinion by this court in Singh v. Singh (2004) 114 Cal.App.4th 1264, 9 Cal.Rptr.3d 4 ( Singh )-argued that the causes of action involved an “issue of public interest.” Plaintiff's opposition argued otherwise, an opposition that also showed that in any event there is a “strong likelihood that he will prevail on his claims....[¶] .... The published statements are provably false, caused plaintiff damages and defendants failed to use reasonable care in publishing the statements.” That, plaintiff claimed, was “established.” Defendants' reply did not disagree, acknowledging that “by denying or refuting the statements [that] plaintiff has taken issue with, at best he has merely put them at issue.”
The trial court entered a detailed order concluding that the first three causes of action did not involve an issue of public interest and that plaintiff demonstrated a likelihood of prevailing on the fourth. The Jammu defendants appealed, as the anti-SLAPP statute gives them the right to do.
We review the matter de novo, and we affirm, doing so without adding to the burgeoning California jurisprudence as to what is, or is not, an “issue of public interest.” For, such issue or not, plaintiff has met his burden under the anti-SLAPP statute-as the Jammu defendants essentially conceded. And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost-and prejudicial delay. It is time for plaintiff's case to be heard on the merits. Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal.
The Sikh Temple and Its Governance
Meanwhile, in December 1998, a second lawsuit was filed, seeking declaratory and injunctive relief, and a receivership. Plaintiffs in that case “complained that there was an unlawful cancellation of a general election scheduled for December 20, 1998, by the defendants named in that case and the assumption of office by a new board of directors on December 6, 1998, without the benefit of an election.” ( Singh, supra, 114 Cal.App.4th at p. 1271, 9 Cal.Rptr.3d 4.) This second lawsuit proceeded to a court trial in 1999.
Sometime later, issues apparently arose in connection with a March 2002 election. Following various meetings, one group remained as the Supreme Council and “refused to vacate,” which led to lawsuit number three, filed in April 2002, the lawsuit that gave rise to our 2004 decision in Singh. ( Singh, supra, at p. 1272, 9 Cal.Rptr.3d 4.)
Apparently three lawsuits had no calming influence on some Temple members, and elections continue to generate intense feelings. And it was allegedly in connection with an upcoming January 2006 election that the Punjab Times published the materials leading to plaintiff's lawsuit here.
*3 Plaintiff's original complaint was filed on June 14, 2006, and named seven defendants: Devinder Singh, Sukhdev Singh, Avtar Singh, Harjinder Singh, Palwinder Singh, and the two Jammu defendants. The complaint alleged three causes of action, the first two for libel against all defendants, the third for slander against the five defendants with the surname Singh. The libel claims were based on two publications in the Punjab Times-plaintiff calls them articles, the Jammu defendants call them advertisements-one on June 18, 2005, and one on December 31, 2005. These claims remained in plaintiff's complaints throughout.
On March 2, 2007, defendants Sukhdev Singh, Avtar Singh, and Palwinder Singh filed an answer. Twelve days later, these same defendants filed a special motion to strike. That motion came on for hearing before the Honorable Winfred Smith who, by order dated April 30, 2007, denied the motion, concluding that “Plaintiff ... has established a probability that he will prevail on his claims. (See [Code of Civil Procedure section] 426.16(b)(1).) [FN1] Put another way, plaintiff has demonstrated by competent evidence a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by him is credited. (See Wilson v. Parker [, Covert & Chidester ] (2002) 28 Cal.4th 811, 821, 123 Cal.Rptr.2d 19, 50 P.3d 733.)” FN2
In May 2007 plaintiff filed a motion for leave to file an amended complaint, which was granted, and a first amended complaint (FAC) was filed on June 29, 2007. The FAC added Gurmeet Singh Khalsa as a defendant, and alleged five causes of action, the same three as in the original complaint, a second libel claim based on the December 31, 2005 article, and an additional slander claim against Khalsa. As before, the Jammu defendants filed a verified answer, this time to a complaint that contained three of the four causes of action they would later attack by their motion to strike.
This answer was filed on August 10, 2007, and from that point on the register of actions contains references to substitutions of attorneys; a motion to be relieved as counsel (June 24, 2008); numerous case management statements; and an order of October 20, 2008 that the case was set for “Civil Jury Trial 7/6/2009.” A flurry of trial preparation-type motions followed, and then, for reasons unexplained in the record, on February 23, 2009, a “Second Amended Complaint [was] filed.” This is the complaint in issue here.
The second amended complaint (SAC) named the same eight defendants as in the FAC: the five Singhs, the two Jammu defendants, and Khalsa. The SAC began with plaintiff's description of himself: “employed as a Court Interpreter for the Superior Court of California, with his place of employment in the County of Alameda. Plaintiff resides in the City of Union City, County of Alameda, California, and has resided there for 38 years. Plaintiff is also a well-known member of the Sikh Temple ... (Temple). At all pertinent times, plaintiff has enjoyed a good reputation generally, in the Temple and in his occupation.”
*4 The SAC went on to identify the defendants, alleging this about the Jammu defendants: that A.B. Publication is an Illinois corporation, doing business in Union City; that A.B. Publication publishes and circulates a weekly publication called the Punjab Times, which “has a wide circulation in California and other states, and is read by a great number of California persons and citizens of the areas in which it is published and circulated”; and that Jammu was the publisher and editor of the Punjab Times. While the SAC alleged seven causes of action, only four were against the Jammu defendants and thus pertinent here, and we describe only them:
First Cause of Action-libel based on a June 18, 2005 article in the Punjab Times, attached as an exhibit. The article was described as “libelous on its face because, among other things, it accused plaintiff of committing a serious crime, of being unfit as a president of the Temple, of being divisive, dishonest and lacking in respect for the Sikh religion and baptism, and lacking in humility and integrity. Specifically, it stated that plaintiff admittedly went into hiding from the Temple in 1984, and only visited the Temple secretly.... The article stated that plaintiff was against the Sikh religion, that he sided with forces out to destroy the Sikh nation, and that he does not believe in Sikh baptism. The article stated that plaintiff joined forces with a certain group in the forcible takeover of the Temple in 1996, and that thereafter he betrayed that group by joining forces with another opposing group. The article stated that plaintiff disrespected the Rehat Maryada Handbook (the Sikh Code of Conduct) by swinging and slamming it hard on the floor, and quipping: ‘what is the use of keeping it now?’ “
Second Cause of Action-libel based on a December 31, 2005 article in the Punjab Times, also attached as an exhibit. This article, too, was “libelous on its face because, among other things, it accused plaintiff of committing the crimes of theft, embezzlement and tax fraud, of being unfit as a president of the Temple, of being divisive, dishonest and lacking in respect for the Sikh religion and baptism.... That article also suggested that plaintiff ... desecrated the Sikh religion and Sikh baptism by precluding baptism from taking place at the Temple, permitting alcohol to be consumed at the Temple and by claiming that he would never marry his daughter to a Sikh.... The same article claimed that plaintiff used to improperly take Temple cash offerings home for his personal taxdeduction purposes; and that he used to charge members of the Temple for the car-parking fees he incurred during his personal errands to San Francisco.”
Third Cause of Action-libel, also based on the December 31, 2005 article, which is “libelous on its face because, among other things, it accused plaintiff, a Sikh, of being unscrupulous, vice-indulgent, and devoid of the Sikh way of life. Furthermore, the article stated that plaintiff exhibited total contempt for the Sikh's golden principles, and that he swung the code copy of the Rehat Maryada Handbook (the Sikh Code of Conduct), ‘slammed it hard on the floor, and retorted “now, what is the need for this for us?” ‘ “
*5 We pause to note that the first and second causes of action in the SAC are identical to those in the original complaint, and that the third cause of action is identical to that in the FAC. They were thus two of the causes of action as to which Judge Smith held that plaintiff had a probability of prevailing-and three of the causes of action to which the Jammu defendants had filed verified answers.
Sixth Cause of Action-libel based on a May 24, 2008 article in the Punjab Times, also attached as an exhibit. This article is entitled “Very Serious Notice Taken of Hardev Grewal's Statement About Guru Granth Sahib,” and it is, plaintiff alleged, “libelous on its face because, among other things, ... the article claimed that plaintiff, a Sikh, had described a Sikh school operated on the premises of the Fremont Sikh Temple ... as a training ground for fundamentalist terrorists. The article also claimed that plaintiff had described the students of the same school as the ... same terrorist organization reportedly responsible for the September 11, 2001 terrorist attacks on the World Trade Center in New York. Specifically, the articles stated that Plaintiff and his associates had described the Khalsa School operated on the Temple premises as a ‘madrassa’ (an Urdu term for School of Islamic Instruction) and its students as the ‘Talibans.’ ...”
The Anti-SLAPP Motion
The points and authorities have no argument headings, so the Jammu defendants' precise argument(s) is (are) not easily determined. Indeed, the points and authorities-or, for that matter, the motion itself-do not even specify which of the four descriptions in section 425.16, subdivision (e) supposedly encompasses plaintiff's lawsuit. However, various assertions in the points and authorities appear in boldface, including this: “An issue of public interest comes under the anti-SLAPP suit protections of C.C.P. § 425.16 simply if the public is interested. The issue need not be significant. The Sikh Temple election with a membership of over 8,216 held a hotly contested election in 2005 and 2006 and bylaw amendment proposals in which the plaintiff was openly involved in. Has the plaintiff involved himself in an issue of public interest?” FN5
The Jammu defendants' own description of the matter, and their apparent position, reads this way: “The ads and article that the plaintiff takes issue with: The first three libel causes of action contained in the second amended complaint are based on three paid for advertisements which were published in the Punjab Times.... In reading these ads three themes immediately emerge: (1) These ads discuss a matters concerning the Sikh religion; (2) These ads are part of a debate over the administration of Fremont Sikh Temple and board of director elections; and (3) These ads concern the credibility of plaintiff who the writers of these ads obviously disagree with. [¶] A news article appeared in the Punjab Times on May 24, 2008 which attributed various statements and actions to the plaintiff.... The plaintiff, by virtue of the above entitled action, took exception to this article. The May 24th news article is the subject of the plaintiff's sixth cause of action....”
*6 We assume from this, an assumption confirmed at oral argument, that the Jammu defendants rely on section 425.16, subdivision (e)(4), which provides as follows: “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: ... (4) ... 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 eight non-counsel declarations submitted in support of the motion refer to various events over the years concerning Temple elections and governance, and plaintiff's claimed participation. The Jammu defendants describe the thrust of the declarations this way: “The Declarations submitted: The declarations submitted all contain firsthand accounts of plaintiff Grewal's involvement in the politics and affairs of the Fremont Sikh Temple and establish the plaintiff's public figure status.... The declaration of defendant Jammu establishes the context in which the ads and articles were published and demonstrates the very important 1st amendment role that the Punjab Times and other news papers like his plays within the Sikh community. The conclusion that can be drawn from Mr. Jammu's declaration is that to permit the plaintiff's lawsuit to continue would be punish ethnic newspapers in their role of communicators of information within a religious community. [¶] Finally, what the case is really all about is a dispute centered on religion and the politics of an 8,126 member Sikh Temple.” FN6 Significantly, not one of the declarants attempted to show that any of the disparaging things said about plaintiff was true.
Plaintiff filed vigorous opposition, which included 20 declarations. One was from his counsel, which attached and authenticated numerous pleadings and documents. Eighteen were from colleagues, friends, and acquaintances, many of whom held executive positions in technology companies and, inferentially at least, had no vested interest in the dispute. These declarants testified at length about their interactions with plaintiff, his involvement in Temple matters, and his stellar reputation. Some declarants also testified-without objection-about the person who turned out to be the sole source of the publications, a person whose reputation was, according to this testimony, less than stellar. The 20th declaration was from plaintiff himself, who testified at length about his background, his family, his history at the Temple, the false things said about him, and their effect. All this will be set forth in detail in connection with the discussion showing that plaintiff met his burden under the anti-SLAPP law.
The Jammu defendants filed a 10-page reply. The first paragraph cited, without discussion, four cases they claimed supported that statements “published during the heat of election involving an 8,126 member Sikh Temple are ... matters of public interest.” The next two paragraphs asserted, without benefit of authority or citation, that plaintiff has not shown that he is not a public figure and that the Punjab Times is not a newspaper. And then the reply said this: “So what this motion really comes down to is whether the plaintiff has established a probability of prevailing. [¶] When sorting through all the verbiage and at times vitriolic rhetoric contained in the declarations submitted by the plaintiff all we have is a bunch of friends and political allies saying how nice a guy the plaintiff is. If anything, these declarations serve as evidence that establish the plaintiff's public figure status. [¶] The plaintiff has not established that the defendants acted with malice. The plaintiff has not established that the statements made in the articles were false. Rather by denying or refuting the statements the plaintiff has taken issue with, at best he merely has put them at issue. And putting the statements at issue is a far cry from establishing a prima facie case that would bring plaintiff a favorable judgment....” (Italics added.)
*7 The motion came on for hearing on July 1, 2009 before the Honorable Jo-Lynne Q. Lee. Judge Lee had published a tentative ruling denying the motion and, following brief argument, announced that the tentative ruling would be affirmed. Judge Lee thereafter entered a detailed order denying the motion, which order held in pertinent part as follows: “[T]he first three causes of action do not arise from Defendants' exercise of first amendment rights ‘in connection with a public issue’ or ‘an issue of public interest.’ (CCP § 425.16(b)(1), (e).) The alleged publications about Plaintiff were made in connection with elections to the board of a Sikh temple and disputes over its by-laws, both purely private matters within the temple's congregation.” Judge Lee's order went on to thoughtfully distinguish the cases relied on by the Jammu defendants.
As to the sixth cause of action, Judge Lee held that as it involved a statement that the Temple school was an Islamic instruction school and referred to the Taliban, it did involve an issue of public interest. But, she went on, plaintiff met his burden with sufficient evidence.FN7
The Anti-SLAPP Analysis
With relatively few exceptions, the cases then proceed to a determination of the first step: whether defendant made a threshold showing implicating the anti-SLAPP statute. These determinations typically-and understandably-involve many pages of analysis discussing the pertinent law, and then applying it to determine whether the complaint before the court does, or does not, implicate the anti-SLAPP statute. And thus has developed a significant body of lengthy jurisprudence that has burdened-many would say overburdened-the courts of California.
We could write at length on the question whether the publications here concerned “an issue of public interest,” and add to all this. And assuming we were to agree with Judge Lee's thorough analysis, we would affirm her decision on the first three causes of action.FN8 That, of course, would still leave the sixth. We resist this temptation, and determine only step two: whether plaintiff met the burden imposed on him. And easily conclude that he did.
Plaintiff Met His Burden Under Section 425.16
That is the setting in which we determine whether plaintiff has met the required showing, a showing that is “not high.” ( Overstock.com, supra, 151 Cal.App.4th at p. 700, 61 Cal.Rptr.3d 29.) In the words of the Supreme Court, plaintiff need show only a “minimum level of legal sufficiency and triability.” ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5, 97 Cal.Rptr.2d 179, 2 P.3d 27.) In the words of other courts, plaintiff need show only a case of “minimal merit.” (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, 35 Cal.Rptr.3d 31, quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 95, 124 Cal.Rptr.2d 530, 52 P.3d 703.)
As noted, the Jammu defendants conceded in their reply brief below that plaintiff's opposition put the matter “at issue,” a concession that makes other descriptions of a plaintiff's burden in an anti-SLAPP motion even more apt. As the Supreme Court early-on noted, the anti-SLAPP statute operates like a “motion for summary judgment in ‘reverse.’ “ ( College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, 34 Cal.Rptr.2d 898, 882 P.2d 894.) Or, as that court would later put it, “Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. [Citation.]” ( Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 192, 25 Cal.Rptr.3d 298, 106 P.3d 958; accord, Taus v. Loftus (2007) 40 Cal.4th 683, 714, 54 Cal.Rptr.3d 775, 151 P.3d 1185.)
Numerous courts of appeal have articulated the test in similar language. (See Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062, 99 Cal.Rptr.3d 661 [“a standard ‘similar to that employed in determining nonsuit, directed verdict or summary judgment motions' “]; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317, 126 Cal.Rptr.2d 516 [“plaintiff's burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment”]; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907, 84 Cal.Rptr.2d 303 [“similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment”].)
Applying those descriptions here leads easily to the conclusion that plaintiff met his burden under the anti-SLAPP statute, in light of the applicable substantive law.
The Substantive Law
*9 Plaintiff's evidence showed that the first article, published June 18, 2005, was entitled “Few Words with [Plaintiff].” It asserted that from 1984 to 2002 plaintiff had “gone into hiding” and had visited the Temple only secretly, and wondered what kind of atrocities plaintiff had committed that forced him into seclusion. This article accused plaintiff of siding with traitors out to destroy the Sikh nation; and claimed he had disrespected the Handbook of Sikh Code of Conduct by swinging it and slamming it hard on the floor. Plaintiff also submitted several declarations establishing that the statements and things attributed to him in this article were false.
The second article, published on December 31, 2005 and entitled “Some observations about [Plaintiff's] Golden Period,” was the basis of the second and third libel claims. The article falsely charged plaintiff with tax fraud, including that during his term as Temple president in the late 1970's, he took the cash offerings home for his own purposes. This article also asserted that plaintiff charged his personal parking fees to the Temple, and that he treated the Temple as a club, including by having alcohol served there, and called him “wretched, unscrupulous, vice-indulgent, and fun-loving.” Again, plaintiff submitted declarations establishing that the things said about him in this article were false.
The fourth libel claim was based on the article published in May 2008, after this lawsuit was filed. This article stated that plaintiff referred to the Temple school as a “madrassa,” a training school for terrorists and students of the Taliban. Plaintiff submitted evidence that he never made the statement, demanded a retraction, and that the response in the Punjab Times was inadequate.
The above showing met plaintiff's burden as to the first three elements of his libel claims. As to the last element, lack of reasonable care, plaintiff presented evidence that before the Jammu defendants published the first of the articles, they knew plaintiff had a good reputation, a “positive standing,” in the Sikh community, indeed, a cofounder of, and influential member in, the Temple. Nevertheless, they published what they did. And based on what?
The evidence revealed that the content of the publications originated from a single source: Gurmeet Singh. According to abundant evidence presented by plaintiff, Gurmeet Singh had been charged with a criminal offense, arrested, and led from the Temple in handcuffs. He was also fired as the president of the Temple. In addition to that, there was Gurmeet Singh's reputation within the Temple community, where he was variously described as a person with a “dishonest character and bad reputation,” as a “conniving” person, as having a “criminal record for domestic violence,” and as one who would readily spread false rumors to discredit anyone who did not agree with him.FN9
In sum, in point blank terms plaintiff testified that the many libelous statements “made against [him] are totally false and have no factual basis.” They were, he said, “lies.” And he was damaged by them. As he graphically described it at one point, “The defendants' allegations have resulted in irreparable harm to me and my family. Their false claims have been read and talked about by members of the Sikh community and received by many people as fact. Today my family and I cannot go out in public without receiving some accusatory glares from other members of the community. When I see some people talking in a group at social programs, I can't help think that they probably are talking about me. This is especially the feeling when I walk up to them and they stop their conversation. I just cannot take this hurt off my mind. I feel betrayed as I have been forever linked to these despicable lies. This incident has affected me and my family adversely. My children fail to understand why anybody would hurt their father so cruelly for the service he did so with dedication for the community. The lies were not just published facts, but were printed with a larger font, highlighted with solid black margins around them, and with a full photograph of the Temple, to ensure that the articles did not escape the attention of the reader.”
*10 The above shows that plaintiff met the burden imposed on him. And there is nothing in the Jammu defendants' briefs here that raises any question about that. Nothing. We nevertheless discuss these briefs, to demonstrate just how burdensome a misguided anti-SLAPP motion can be.
The 66-page (!) reply brief is no better, with five arguments (some with multiple subparts) set forth with headings ranging from five lines to 13 lines. Again, not commendable. (See Eisenberg, supra, 9:107, p. 9-31, advising to “keep headings short and concise”.) These arguments jump too, from “free exercise” and “free exercise clause” (Arguments II and III) to “public figure status” (Argument IV) to “issues of public interest” (Argument V).
But beyond these deficiencies, the briefs utterly fail to come to grips with the issue here.
The essential position of the Jammu defendants is this: the publications were an issue of public interest; and plaintiff was a public figure (or at least a limited public figure); and free exercise of religion was involved; and thus plaintiff had to prove malice. However quizzically worded, this is how the reply brief synthesizes it: “As the publications [plaintiff] complains of involved an act in furtherance of the exercise of free speech in connection with an issue of public interest, appellants contend that the publications are speech afforded the anti-SLAPP protections contained in Code of Civil Procedure § 425.16. But more importantly, by virtue of defamation or the exercise of speech being the gravamen of [plaintiff's] claims, anti-SLAPP protections necessarily apply provided it is in connection with an issue of public interest. [¶] Appellants further contend that the publications not only involve ... an issue of public interest but as the content of the speech is entangled with matters of religion, the free exercise clause of the First Amendment is implicated. As such, at the very least, [plaintiff] must demonstrate appellants acted with malice. But due to the excessive entanglement of religion involved in [plaintiff's] claims, they many have to be dismissed in the first instance. [¶] Appellants also contend that at the least [plaintiff] is a limited public figure and in any instance, [plaintiff] failed to show that appellants acted negligently, let alone, with malice.”
First, Judge Lee specifically held that the first three causes of action did not involve an “issue of public interest.” But even if such an issue were involved, it is only the first of the two-step anti-SLAPP analysis. And as set forth above, the second step analysis is devastating to the Jammu defendants. They simply ignore it.
Second, Judge Lee (and for that matter Judge Smith before her) specifically held that plaintiff was not a public figure. An ipse dixit does not demonstrate otherwise.
Third, any claim of “free exercise of religion” or “excessive entanglement of religion” does not apply, as the sole case on which the Jammu defendants rely expressly holds. That case is McNair v. Worldwide Church of God (1987) 197 Cal.App.3d 363, 242 Cal.Rptr. 823, which held that any special protection is afforded only to a defamation “made during the course of a doctrinal explanation by a duly authorized minister.” ( Id. at p. 377, 242 Cal.Rptr. 823.) The publications here were not “doctrinal explanations,” Jammu and the Punjab Times not “ministers.”
In short, plaintiff did not have to show malice. But even if he did, such could be present here, in light of the evidence that the Jammu defendants relied solely on Gurmeet Singh, hardly a reliable source. There was evidence he had been charged with a criminal offense, arrested, and led from the Temple in handcuffs; that he had been fired as Temple president; and that he had a reputation within the Temple community as a “dishonest” person, a “conniving” person,” and a person who would readily spread false rumors to discredit anyone with whom he disagreed. Reliance on such a person evidences malice. (See Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640, 188 Cal.Rptr. 216 [charge of criminal conduct based on information from source hostile to plaintiff presented jury question whether there was reckless disregard of truth]; Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 278, 79 Cal.Rptr.2d 178, 965 P.2d 696.) Beyond all that, the Punjab Times published the articles in 16 states besides California, over-publication that is also evidence of malice. ( Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 667, 165 Cal.Rptr. 347.)
Based on all the above, we conclude that Judge Lee properly denied the Jammu defendants anti-SLAPP motion, a motion, we add, that should never have been brought, generating an appeal that, as shown, is utterly lacking in merit. Something is wrong with this picture.
The Anti-SLAPP Statute: Its Purpose, Use, Misuse, and Abuse
*12 The purpose of the statute was the subject of extensive discussion by our Division One colleagues, in Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 17 Cal.Rptr.3d 497, which began as follows: “SLAPP Suits, and Legislative Response to SLAPP Suits [¶] The court in Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 33 Cal.Rptr.2d 446 (disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685), one of the first cases to apply anti-SLAPP legislation, explained:
“ ‘Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as “civil lawsuits ... that are aimed at preventing citizens from exercising their political rights or punishing those who have done so.” ( Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Social Problems 506.) The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants' continued political or legal opposition to the developers' plans. [Citations.]
“ ‘The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance and intentional infliction of emotional distress. [Citation.] Plaintiffs in these actions typically ask for damages which would be ruinous to the defendants. [Citations.]
“ ‘SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.] Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. [Citation.] But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective. [Citation.] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [Citations.] ...
“ ‘Thus, while SLAPP suits ‘masquerade as ordinary lawsuits' the conceptual features which reveal them as SLAPP's are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. [Citation.]’ “ ( Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 890-891, 17 Cal.Rptr.3d 497.)
The early cases were not consistent in interpreting the scope of the anti-SLAPP statute. (See generally Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1113, 81 Cal.Rptr.2d 471, 969 P.2d 564 ( Briggs ) [discussing the “divided” decisions of the Courts of Appeal].) Proponents of the anti-SLAPP procedure became concerned that the statute was being applied too narrowly, and sought legislative relief. This resulted in a 1997 amendment to section 425.16, which expanded the definition of activity “in furtherance of a person's right of petition or free speech” to include “any other conduct in furtherance of the right of petition or the constitutional right of free speech in connection with a public issue or issue of public interest.” The 1997 amendment also added this last sentence to the preamble: “To this end, this section shall be construed broadly.” (Stats.1997, ch. 271, § 1.)
*13 Shortly after this amendment, the Supreme Court decided Briggs, holding that an anti-SLAPP motion brought under section 425.16, subdivisions (e)(1) and (2) did not need to show that the statement concerned an issue of public significance. Doing so, the court expressly relied on the newly added language that section 425.16 “shall be construed broadly.” ( Briggs, supra, 19 Cal.4th at p. 1119, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Interestingly-if not presciently-the majority opinion ends with the observation that “[i]f we today mistake the Legislature's intention, the Legislature may easily amend the statute.” ( Id. at p. 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) In dissent, Justice Baxter expressed concern that “[t]he majority's holding expands the definition of a SLAPP suit to include a potentially huge number of cases, thereby making the special motion to strike available in an untold number of legal actions that will bear no resemblance to the paradigm retaliatory SLAPP suit to which the remedial legislation was specifically addressed.” ( Id. at p. 1129, 81 Cal.Rptr.2d 471, 969 P.2d 564 (conc. & dis. opn. of Baxter, J.).)
Whatever the reason, concern quickly galvanized in the direction that the anti-SLAPP statute was being misused. This concern immediately made its way to the Legislature, which in the 1999-2000 session, passed a bill precluding application of the anti-SLAPP statute to purely consumer interest actions. But Governor Davis vetoed the bill. This concern was resurrected in the 2003-2004 session, in Senate Bill 515,FN10 which passed, and became the new Code of Civil Procedure section 425.17, which begins with this observation: “The Legislature finds and declares that there has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16.” (Stats.2003, ch. 338, § 1.)
Concern that the anti-SLAPP procedure was being abused also extended to the courts, where various justices expressed the concern in various ways. Comments in three cases illustrate the point.
Navallier v. Sletten, supra, 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, involved the issue whether a defendant's having filed counterclaims in a prior, unrelated proceeding in federal court was one arising from “protected activity.” ( Id. at p. 85, 124 Cal.Rptr.2d 530, 52 P.3d 703.) A divided Supreme Court held that it was. Claiming that such holding was an unwarranted expansion of the anti-SLAPP law, dissenting Justice Brown, writing for herself and Justices Baxter and Chin, asserted that the majority's “presumptive application of section 425.16 will burden parties with meritorious claims and chill parties with nonfrivolus ones.” And she added this flourish: “The cure has become the disease-SLAPP motions are now just the latest form of abusive litigation.” ( Navellier v. Sletten, supra, 29 Cal.4th at p. 96, 124 Cal.Rptr.2d 530, 52 P.3d 703 (dis. opn. of Brown, J.).)
Moore v. Shaw (2004) 116 Cal.App.4th 182, 10 Cal.Rptr.3d 154 was a defendant's appeal from the denial of an anti-SLAPP motion. The Court of Appeal affirmed and, holding that the motion was frivolous, reversed the trial court's denial of attorney fees to the plaintiff. Doing so, Presiding Justice Klein ended with this: “We cannot help but observe the increasing frequency with which anti-SLAPP motions are brought, imposing an added burden on opposing parties as well as the courts. While a special motion to strike is an appropriate screening mechanism to eliminate meritless litigation at an early stage, such motions should only be brought when they fit within the parameters of section 425.16.” ( Id. at p. 200, fn. 11, 10 Cal.Rptr.3d 154.)
*14 Moran v. Endres (2006) 135 Cal.App.4th 952, 37 Cal.Rptr.3d 786was an appeal by defendants who had been denied attorney fees, which defendants had prevailed in obtaining dismissal of only “one of many causes of action,” ( id. at p. 953, 37 Cal.Rptr.3d 786) and that for conspiracy, which is not a cause of action in any event. ( Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, 28 Cal.Rptr.2d 475, 869 P.2d 454.) Affirming the denial of attorney fees, an exasperated Justice Armstrong observed: “Section 425.16 was enacted because the Legislature found 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.’ Neither the public's nor defendant's right to participate was advanced by this motion.” ( Moran v. Endres, supra, at p. 955, 37 Cal.Rptr.3d 786.) A concurring Justice Mosk added this: “Code of Civil Procedure section 425.16 ... has resulted in numerous appeals that involve various ambiguities and apparent unintended consequences.” ( Id. at p. 956, 37 Cal.Rptr.3d 786 (conc. opn. of Mosk, J.).)
Meanwhile, commentators were also writing on the explosion of anti-SLAPP motions, claiming to support their conclusions with counts and statistics. An early example said this: “The statute went from a little-used statutory protection for environmental and other protestors ... [to a] ... veritable explosion in appellate court decisions dealing with the statute. Between 1992, when the statue was first enacted, and January 1, 2000 there were only 34 published appellate decisions on the statue. But between January 1, 2000 and September 25, 2003, there were 184 published and unpublished decisions. Of those decisions, 148 have been rendered from September 25, 2002 to September 25, 2003.” (Arkin, supra, 31 W. St. U. L.Rev., at p. 2, fns. omitted.) FN11
We have attempted no such case count ourselves, but have reviewed the annotations to section 425.16 in West's Annotated California Code, which we find revealing indeed: the annotations for the 12-year period between 1992 and 2004 are 82 pages, an average of 6-plus pages per year; the annotations for the five-year period between 2005 and 2009 are 107 pages, an average of 20-plus pages per year. And no let up seems in sight, as one cannot pick up a volume of the official reports without finding an anti-SLAPP case. Or four. (See 177 Cal.App.4th. at pp. 471, 940, 1049, 1264.) This, of course, is just the published opinions.
There is precise evidence of this explosion in the record of anti-SLAPP filings that the Judicial Council is required to keep in accordance with the express directive of subdivision (j)(1) of section 425.16.FN12 That Judicial Council record shows the following filings of anti-SLAPP motions since 1999: 1999-55; 2000-327; 2001-302; 2002-543; 2003-587; 2004-542; 2005-515; 2006-598; 2007-508; 2008-555; and 2009-558.FN13
The reason(s) behind this explosion are not necessarily germane to our discussion, and thus we offer nothing on the subject save this. A well-known saying, generally attributable to William Gladstone, is that “Justice delayed is justice denied.” A lesser known saying, known to be attributable to prominent defense lawyers from major law firms, is that “Justice delayed is justice.” Maybe it is that simple. Maybe not.
*15 What is germane to our discussion is the ways in which the anti-SLAPP procedure is being misused-and abused. Without attempting to describe all the ways, we offer two examples, one obvious, one not.
The obvious example is found in the numerous cases that involve complaints that simply do not “arise from” protected activity, but generate anti-SLAPP motions nevertheless. Examples include actions against attorneys. ( Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1539, 52 Cal.Rptr.3d 712 [“ ‘garden variety’ attorney malpractice”]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1187, 20 Cal.Rptr.3d 621 [duty of loyalty]; Jesperson v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630, 7 Cal.Rptr.3d 715; Moore v. Shaw, supra, 116 Cal.App.4th 182, 10 Cal.Rptr.3d 154 [breach of trust]; Beech v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82, 1 Cal.Rptr.3d 454 [failure to timely arbitrate].) And personal injury claims. ( Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193, 6 Cal.Rptr.3d 494 [“garden variety personal injury claims” against dietary product manufacturer].) And insurance coverage cases. ( State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 975, 121 Cal.Rptr.2d 719 [declaratory relief action to resolve coverage issues].)
But another, and more subtle, abuse can be found in a case where the defendant could in good faith claim that plaintiff's action arose from protected activity, and thus could meet the burden under step one of the anti-SLAPP analysis. But as seen, that is only the beginning. And suppose further that defendant (or defendant's attorney) knows that the plaintiff could meet the burden under step two. Defendant nevertheless files the anti-SLAPP motion, knowing that it will cause plaintiff to expend thousands of dollars to oppose it, all the while causing plaintiff's case, and ability to do discovery, to be stayed. Would this not constitute a misuse of the procedure? But even if it might not in the abstract, might it not here, where an earlier anti-SLAPP motion had been denied, the court expressly holding that plaintiff had met his burden under step two-a holding, not incidentally, made against three defendants who, unlike the Jammu defendants, were not even the publishers of the articles. We would say that this filing alone would be an abuse. And certainly when followed by the abuse coup de grâce-the appeal.
A Losing Defendant's Right to Appeal Is the Aspect of the Anti-SLAPP Statute Most Subject to Abuse
The legislative history leading to subdivision (i) is not particularly illuminating, as shown by the brief discussion in the Senate Judiciary Report, which reads in its entirety as follows: “1. Stated need for legislation [¶] According to the proponents, this bill would further the purpose of the anti-SLAPP statute by allowing the defendant to immediately appeal a denial of a special motion to strike. Without this ability, a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated. [¶] The proponents contend that when a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal [ sic ], which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP statute is useless and has failed to protect the defendant's constitutional rights. The proponents assert that since the right of petition and free speech expressly granted by the U.S. Constitution are at issue when these motions are filed, the defendant should have the immediate right to appeal and have the matter reviewed by a higher court. [¶] The author is submitting amendments in Committee to clarify that the right of appeal would apply to motions granted or denied in order to assure that both the plaintiff and defendant are given equal rights to appeal an adverse order.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended May 28, 1999, p. 3.)
*16 The right of a defendant to appeal a losing anti-SLAPP motion quickly became, like so much else of the anti-SLAPP procedure, the subject of criticism. Indeed, such criticism was acknowledged by the Legislature itself in 2003 when, in discussing Senate Bill 515, the Senate Judiciary Committee noted the claim by the proponent of the bill “that current law is being used by defendants to unreasonably delay a case from being heard on the merits, thus adding litigation costs and making it more cumbersome for plaintiffs to pursue legitimate claims.... The filing of the meritless SLAPP motion by the defendant, even if denied by the court, is instantly appealable, which allows the defendant to continue its unlawful practice for up to two years, the time of the appeal.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 515 (2003-2004 Reg. Sess.) as amended May 1, 2003, pp. 11-12.) As enacted, section 425.17 expressly states that if a motion is denied based on that section, “the appeal provisions ... of section 425.16 ... do not apply.” (§ 425.17, subd. (e).) Unfortunately, section 425.16 was left untouched.
The concern about possible abuse of a losing defendant's right to appeal caught the attention of the Supreme Court in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958. While holding that the defendant's appeal stayed all proceedings in the trial court affecting the merits of the case, the court recognized the opportunity for abuse: “In light of our holding today, some anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial. As the Court of Appeal observed and plaintiffs contend, such a result may encourage defendants to ‘misuse the [anti-SLAPP] motions to delay meritorious litigation or for other purely strategic purposes.’ “ ( Id. at p. 195, 25 Cal.Rptr.3d 298, 106 P.3d 958.)
Commenting on this in Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283-284, 35 Cal.Rptr.3d 909 ( Olsen ), Justice Sims observed as follows: “Both the Legislature and the Supreme Court have acknowledged the ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse. As to abuse occasioned by the stay of proceedings on appeal of the denial of an anti-SLAPP motion, the Supreme Court has ‘encouraged’ us ‘to resolve these ... appeals as expeditiously as possible. To this end, reviewing courts should dismiss frivolous appeals as soon as practicable and do everything in their power to “ ‘prevent ... frustration of the relief granted.’ “ ‘ [Citation.]” (Fns.omitted.) Nothwithstanding our great respect for Justice Sims, such dismissal is easier said than done.
Olsen involved an appeal that claimed that the trial court abused its discretion in denying an anti-SLAPP motion that was clearly untimely, an appeal, Justice Sims rightly concluded, that indisputably had no merit. However, while ultimately dismissing the appeal, Justice Sims first recognized the “general rule” that a motion to dismiss should never be granted if ruling on the motion “requires a consideration of the merits.” ( Olsen, supra, at p. 284, 35 Cal.Rptr.3d 909, citing Reed v. Norman (1957) 48 Cal.2d 338, 342, 309 P.2d 809.) “The general rule is grounded on policies of avoiding double work by this court and avoiding unwarranted advancement of the case on calendar. (See 9 Witkin, Cal. Procedure [ (5th ed. 2010) ] Appeal, §§ [747-748], pp. [811-812].) The Supreme Court's admonition for dispatch in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958, warrants an exception from the general rule here.” ( Olsen, supra, 134 Cal.App.4th at p. 284, fn. 5, 35 Cal.Rptr.3d 909). From there, Justice Sims went on to grant the motion to dismiss the appeal because it was “frivolous.” ( Olsen, supra, 134 Cal.App.4th at p. 280, 35 Cal.Rptr.3d 909.)
*17 Not all cases are so easily disposed of, especially if dismissal cannot be done without some meaningful analysis of the merits. And therein lies the rub. What to do? Eliminating a losing defendant's right to appeal is certainly one solution. And, we urge, one that should seriously be considered by the Legislature, especially as it would not necessarily leave the defendant without recourse.
In those relatively rare circumstances where a trial court has clearly erred in denying a meritorious anti-SLAPP motion, relief might be obtained by a writ, as it has been in similar circumstances where an appeal does not lie. (See, e.g., West Shield Investigations and Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935, 98 Cal.Rptr.2d 612 [denial of summary adjudication; mandate ordering grant of motion]; Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379 [order overruling demurrer; mandate to sustain demurrer without leave to amend]; Holtz v. Superior Court (1970) 3 Cal.3d 296, 304, 90 Cal.Rptr. 345, 475 P.2d 441 [order striking strict liability inverse condemnation count; mandate compelling reinstatement]; Fair Employment and Housing Com. v. Superior Court (2004) 115 Cal.App.4th 629, 633, 9 Cal.Rptr.3d 409 [mandate to vacate order overruling demurrer]; American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 755, 285 Cal.Rptr. 765 [writ review entertained following denial of judgment on the pleadings].) But even if a writ were not obtained, the defendant could quickly move for summary judgment, as the primary basis on which a defendant should prevail-and thus, where the trial court has clearly erred-is generally a legal question, such as where the litigation privilege applies.
We recognize the observation by Presiding Justice Sills in People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317-1318, 9 Cal.Rptr.3d 844, commenting on the defendant's right to appeal a denial of an anti-SLAPP motion: “The right to appeal has a certain logic to it. After all, what use is a mechanism to allow you to get out of a case early if it is undercut by an erroneous decision of the trial judge? The point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights. The right to appeal a denial of an anti-SLAPP motion is important because it protects the interest validated by the anti-SLAPP statute.”
After describing that right as “important,” Justice Sills went on to observe that “the right to appeal has its own consequences. As we write, at least one appellate court has drawn the correlative conclusion that an appeal from the denial of anti-SLAPP motion also stays proceedings in the trial court. [Citation.] You don't just get the right to go to the appellate court, you also get a free time-out in the trial court.” ( Lockyer v. Brar, supra, at p. 1318, 9 Cal.Rptr.3d 844.) And from there he went further-to dismiss the appeal as frivolous. ( Ibid.)
We do not disagree that the right to appeal can be “important.” But it should not trump all else. And a losing defendant's “loss” of the right to appeal a lost anti-SLAPP motion, we submit, is a much smaller price to pay than a winning plaintiff having to expend thousands of dollars in attorney fees on appeal, while plaintiff's case is stayed for anywhere from 19 to 26 months, FN15 all in a setting where the original motion was without merit, if not downright frivolous.
*18 It is now almost five years since plaintiff filed his lawsuit, and trial is not yet in sight. Such delay hardly seems defensible, particularly when it is due in no small part to non-meritorious appeals by defendants who lost anti-SLAPP motions, the first appeal voluntarily dismissed after languishing for a long period (see fn. 2 ante ), and this appeal rejected as utterly without merit. As we said, something is wrong with this picture, and we hope the Legislature will see fit to change it.
We concur: KLINE, P.J., and HAERLE, J.
FN1. All further unspecified statutory references are to the Code of Civil Procedure.
FN2. The three Singh defendants filed an appeal from the order denying their motion, which they voluntarily dismissed in April 2008.
FN3. Since the motion to strike was filed within 60 days of the SAC, it was timely under section 425.16. (Section 425.16, subd. (f).)
FN4. The request for judicial notice did not comport with the requirements of the Rules of Court. (Cal. Rules of Court, rule 3.1306(c).)
FN5. The points and authorities also boldface, without elaboration, that plaintiff “is a public figure”, and that the Punjab Times is a newspaper “afforded the 1st Amendment protection in section 425.16.”
FN6. Plaintiff filed extensive objections to these declarations, some of which were ruled on, some not, and some of which objections were sustained. The effect of the sustained objections is not pertinent to our discussion, and we need not review the evidentiary rulings.
FN7. While perhaps not necessary, Judge Lee conscientiously went on to note-and correctly-that defendants have “not shown that Plaintiff was a ‘limited public figure’ with respect to the publication, allegedly made in 2008. [Citation.] Here, Plaintiff presents evidence that he was not unusually active in temple politics, in general, in 2008, and that during that year he merely spoke, as an ordinary congregant, [at] a temple meeting and a meeting in a San Jose temple. Defendants' evidence, while potentially creating a dispute as to how active Plaintiff was, does not ‘defeat’ Plaintiff's evidence by demonstrating that, as a matter of law, Plaintiff voluntarily injected himself into a public controversy or sought to influence the resolution of some public issue, and that the imputed comment regarding the temple school was part of that controversy. [Citation.] As such, Plaintiff need not prove malice.
“For this cause of action, Plaintiff need only prove that Defendants published the article, that Plaintiff did not make the statement attributed to him, and that defendants failed to use reasonable care to determine the truth or falsity of the statements. (See CACI 1704; 5 Witkin Summ. Cal. Law (2008) § 627.) Plaintiff has submitted prima facie evidence supporting each of these elements. Defendants' evidence does not defeat Plaintiff's prima facie case. Moreover, Defendants' contentions regarding a printed retraction-assuming that a genuine retraction was printed-only go to the extent, not the existence, of Plaintiff's harm. (See Code Civ. Proc. § 48a; 5 Witkin Summ. Cal. Law (2008) § 629.)”
FN8. Which affirmance, though it would undoubtedly be lengthy, would probably not be difficult, as the statements were personal attacks on plaintiff, who was neither running in the election nor campaigning publicly in connection with it. The law is that there must be a public interest in the specific speech or conduct alleged in the complaint: “ ‘The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements' of the anti-SLAPP statute.” ( World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570, 92 Cal.Rptr.3d 227; see also Episcopal Church Cases (2009) 45 Cal.4th 467, 477, 87 Cal.Rptr.3d 275, 198 P.3d 66[reversing trial court grant of anti-SLAPP motion, as church-related litigation involving property ownership was not protected activity; and confirming that “the critical consideration” is whether the cause of action is based on “defendant's free speech or protected activity.”)
FN9. Beyond the reputation evidence, plaintiff offered a concrete example: plaintiff testified that in 2004 Gurmeet Singh had asked plaintiff to provide a false declaration stating that a political opponent of Singh's had been seen drinking alcohol, a prohibited activity to a baptized Sikh. Singh explained to plaintiff that he needed the declaration in order to discredit the opponent to defeat him in an upcoming election. Plaintiff declined to provide the declaration.
FN10. Among the people writing in support of SB 515 was Penelope Canan, one of the two law professors whose work was the basis for section 425.16. Professor Canan's letter read in pertinent part as follows: “Anti-SLAPP legislation is intended to ‘provide citizens who are sued for speaking out with a speedy and relatively inexpensive defense mechanism against attacks on their First Amendment rights by SLAPPs.’ [¶] How ironic and sad, then, that corporations in California have now turned to using meritless anti-SLAPP motions as a litigation weapon. This turns the original intent of one of the country's most comprehensive and effective anti-SLAPP laws on its head.” (Arkin, Bringing California's Anti-SLAPP Statute Full Circle: To Commercial Speech and Back Again (2003-2004) 31 W. St. U. L.Rev., 1, 22.)
FN11. In 2005, Presiding Justice Ruvolo summarized the effect of this in a scholarly journal: “it is no wonder that in the last several years, California appellate courts have been inundated with appeals involving the granting or denial of [anti-SLAPP] motions.” (Ruvolo, Appellate Mediation-Settling the Last Frontier of ADR (2005) 42 San Diego L.Rev. 177, 196, fn. 50.)
FN12. This subdivision provides as follows: “(j)(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 e-mail or facsimile, 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, including any order granting or denying a special motion to strike, discovery, or fees.”
FN13. The figures cited are distilled from spreadsheets provided by the Executive Office Programs Division of the Administrative Office of the Courts.
FN14. Section 904.1 was amended so that it provided, “(a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: ... (13) From an order granting or denying a special motion to strike under Section 425.16.” (Stats.1999, ch. 960, § 2.)
FN15. See Judicial Council of Cal., 2010 Court Statistics Rep. Caseload Trends 1999-2000 through 2008-2009, p. 17.
Cal.App. 1 Dist.,2011.
Grewal v. Jammu
--- Cal.Rptr.3d ----, 2011 WL 78513 (Cal.App. 1 Dist.)
END OF DOCUMENT