What Is Anti-SLAPP?

Anti-SLAPP Law

Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws are designed to protect individuals from lawsuits intended to silence their free speech or petition activities pursuant to the First Amendment. 

Anti-SLAPP Motions

Anti-SLAPP motions, or Special Motions to Strike, are a way for defendants to challenge and kick out lawsuits that are considered Strategic Lawsuits Against Public Participation (SLAPPs). SLAPPs are civil complaints that target people for exercising their First Amendment rights, such as free speech or petitioning. Anti-SLAPP motions are filed early in the litigation process, usually as a responsive pleading to the complaint and before discovery begins. Anti-SLAPP motions can dismiss the complaint early in the process and protects defendants from the cost and time of discovery for a lawsuit that may have no merit. If the motion is successful, then the motion can limit or eliminate the entire cause of action.

Causes of Actions Subject to Anti-SLAPP Motions

Anti-SLAPP motions are typically filed in response to lawsuits that arise from actions protected by the right to free speech or petition. Common causes of action that give rise to Anti-SLAPP motions include:

1. Defamation: Lawsuits alleging libel or slander often prompt Anti-SLAPP motions, especially when the statements in question involve matters of public interest or concern.

2. Invasion of Privacy: Claims based on the publication of private facts or false light invasion of privacy can be subject to Anti-SLAPP motions if the publication pertains to issues of public interest.

3. Intentional Infliction of Emotional Distress: When these claims are based on statements or conduct related to public participation or debate, defendants may use Anti-SLAPP motions to seek dismissal.

4. Malicious Prosecution: Lawsuits alleging that the plaintiff was wrongfully prosecuted can lead to Anti-SLAPP motions if the original case involved protected activities.

5. Abuse of Process: Claims that a legal process was misused to achieve a wrongful end, particularly when the process involves protected petitioning activities, can trigger Anti-SLAPP motions.

6. Interference with Contractual Relations: These claims can be subject to Anti-SLAPP motions when the interference involves actions or statements related to public participation or advocacy.

7. Business Torts: Claims such as trade libel or intentional interference with prospective economic advantage may be met with Anti-SLAPP motions if they are based on statements or actions involving public issues or free speech.

Attorney Fee Shifting

In practice, the possibility of facing an Anti-SLAPP motion is a critical consideration for a plaintiff in bringing their lawsuit.  This is because the prevailing defendant of a Anti-SLAPP motion can have their attorney’s fees also awarded. This means the plaintiff will have to pay the Defendant’s attorney fees. Under California’s Anti-SLAPP statute (Code of Civil Procedure section 425.16), attorney fee shifting is mandatory when a defendant successfully files an Anti-SLAPP motion. This provision deters meritless lawsuits aimed at suppressing free speech. The court may award reasonable attorney fees and costs to the prevailing defendant (Code Civ. Proc., § 425.16(c)). The fees are calculated based on the hours worked and the hourly rates charged, ensuring fairness in the reimbursement process. Nonetheless, the fees will be scrutinized and must be approved by the court and could be subject to reduction.  

If the defendant’s Anti-SLAPP motion is granted, even partially, they are entitled to recover their legal costs. Conversely, if the court finds the motion frivolous or solely intended to delay, it may award fees to the plaintiff (Code Civ. Proc., § 425.16(c)). This balance protects against misuse of the Anti-SLAPP statute, ensuring it remains a tool for safeguarding free speech and petition rights.

SLAPP Lawsuit Vs. Anti-SLAPP Motion

A SLAPP is a lawsuit, filed for the improper purpose of trying to silence criticism, or to prevent someone from pursuing their own right of redress. The typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP suit may also intimidate others from participating in the debate.

The “SLAPP” is the lawsuit filed by the Plaintiff against the Defendant, which seeks to either silence the Defendant’s free speech, or to prevent the Defendant from seeking a “right of petition.” The Defendant seeks to have the action dismissed by filing what is called a Special Motion to Strike. That Special Motion to Strike is the anti-SLAPP motion. The SLAPP can be, and often is, a cross-complaint filed in the action. That is where many attorneys who are unfamiliar with SLAPP law get into trouble, because they file a cross-complaint that attacks the complaint, and that itself is a SLAPP.

California’s Anti-SLAPP Statute

California’s anti-SLAPP law is contained in Code of Civil Procedure § 425.16, a statute intended to frustrate these actions by providing a quick and (hopefully) inexpensive defense. Although called a special motion to strike, the anti-SLAPP statute creates a complicated hybrid of a number of motions, from demurrers to motions for summary judgment, with a dash of injunctive relief. When a defendant is served with a lawsuit the defendant asserts is designed to improperly silence his speech, he has the option of filing an anti-SLAPP motion in the first 60 days after service (although the court has the discretion to consider anti-SLAPP motions filed beyond the 60-day deadline).

If the plaintiff files an amended complaint at any point, then that may restart the 60-day clock, depending on how the amended complaint compares to the original complaint. It is sometimes the case that the original complaint will not be a SLAPP, but the plaintiff either adds a cause of action or allegation that makes the amended complaint a SLAPP.

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

Code Of Civil Procedure Section 425.16

Under the statute, the rights of free speech or petition in connection with a public issue include four categories of activities:

• statements made before a legislative, executive or judicial proceeding;
• statements made in connection with an issue under consideration by a governmental body;
• statements made in a place open to the public or a public forum in connection with an issue of public interest;
• and any other conduct in furtherance of the exercise of free speech or petition rights in connection with “a public issue or an issue of public interest.” § 425.16(e).

There are three important anti-SLAPP statutes, but the heart of legislation is contained in subpart (e) of Code of Civil Procedure section 425.16, which provides:

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

Challenging A SLAPP Suit In California

To challenge a SLAPP suit in California, defendants must show that they are being sued for “any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16.

Here’s a general outline of how one might approach challenging a SLAPP suit in California:

(1) Understanding SLAPP Laws

Criteria: Recognize that not all lawsuits are SLAPP suits. A SLAPP suit typically targets speech or actions related to public issues or matters of public interest.

Purpose: SLAPP suits are often filed to intimidate, censor, or silence critics by burdening them with the cost of a legal defense.

(2) Filing An Anti-SLAPP Motion

Timeline: The defendant typically have a limited amount of time after being served with the lawsuit to file an anti-SLAPP motion.

Content: The motion should clearly demonstrate that the lawsuit arises from protected speech or conduct related to an issue of public interest.

(3).  Elements Of An Anti-SLAPP Motion

Prima Facie Case: The defendant must show that the claims against them arise from actions taken in furtherance of the defendant’s right of petition or free speech.

Public Interest: Must argue that the defendant’s speech or conduct concerns a matter of public interest or concern.

Likelihood of Success: The defendant may need to demonstrate a reasonable probability of prevailing on his or her claims in the underlying lawsuit.

(4) Court Hearing 

Decision: The court will decide whether the defendant’s motion meets the criteria under the anti-SLAPP statute.

Burden of Proof: Initially, the defendant must show that the claims against them arise from protected activity. The burden may then shift to the plaintiff to demonstrate a probability of prevailing on their claims.

(5) Appeals And Further Proceedings

Outcome: If successful, the SLAPP suit may be dismissed, and the defendant could potentially recover attorney’s fees and costs.

Appeals: Be prepared for the possibility of appeals from either party depending on the court’s decision.

California courts consider several factors when evaluating whether a statement relates to an issue of public interest, including whether the subject of the statement at issue was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Rivero v. Am. Fed’n of State, Cty., & Mun. Emps., 130 Cal. Rptr. 2d 81, 89–90 (Cal. Ct. App. 2003). Under this standard, statements that report or comment on controversial political, economic, and social issues, from the local to the international level, would certainly qualify. Conversely, a California court has held that statements about a person who was not in the public eye did not relate to an issue of public interest. Dyer v. Childress, 55 Cal. Rptr. 3d 544 (Cal. Ct. App. 2007).

The California anti-SLAPP law allows a defendant to file a motion to strike the complaint, which the court will hear within 30 days unless the docket is overbooked. Cal. Civ. Proc. Code § 425.16(f). Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may permit “specified discovery” if the requesting party provides notice of its request to the other side and can show good cause for it. § 425.16(g).

In ruling on the motion to strike, a California court will first determine whether the defendant established that the lawsuit arose from one of the statutorily defined protected speech or petition activities. Braun v. Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. Ct. App. 1997). If that is the case, the judge will grant the motion unless the plaintiff can show a probability that he will prevail on the claim. Cal. Civ. Proc. Code § 425.16(b)(1). In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to strike, and any sworn statements containing facts on which the assertions in those documents are based. § 425.16(b)(2).

If the court grants the motion to strike, it must impose attorney’s fees and costs on the plaintiff, except when the basis for the lawsuit stemmed from California’s public records or open meetings laws. Cal. Civ. Proc. Code § 425.16(c)(1)-(2). These laws provide separate provisions for recovering attorney’s fees and costs.

SLAPPback 

The California anti-SLAPP law also gives a successful defendant who can show that the plaintiff filed the lawsuit to harass or silence the speaker the ability to file a so-called “SLAPPback” lawsuit against his or her opponent. § 425.18. Under this remedy, a SLAPP defendant who won a motion to strike may sue the plaintiff who filed the SLAPP suit to recover damages for abuse of the legal process. Conversely, the defendant must pay the plaintiff’s attorney’s fees and costs if the court finds that the motion to strike was frivolous or brought solely to delay the proceedings. § 425.16(c)(1). Either party is entitled to immediately appeal the court’s decision on the motion to strike. § 425.16(i).

Get Legal Advice For Your Case

When a plaintiff files a lawsuit, strong considerations should be given to the likelihood of also facing an Anti-SLAPP motion.  Challenging a SLAPP suit can be complex, but California’s anti-SLAPP laws provide significant protections for individuals targeted for engaging in public discourse or activities related to public issues. Understanding these laws and preparing a robust defense with legal counsel can significantly strengthen one’s position in such litigation. Contact The Sterling Firm at (310)498-2750 to speak with an attorney. We can help!