California42516 California California42516AntiSlappActsLaw
Unofficial Contents of CCP § 425.16 - Anti-SLAPP Motion
(a) Declaration of purpose; to be construed broadly
(b) Mechanics of the special motion to strike; action subject to motion; burden of proof; pleadings and evidence considered; finding not later useable
(c) Attorney's fees and costs recoverable; when; exclusion for some sections of Government Code
(d) Special motion to strike not available against government officials
(e) Things included in right of petition or free speech; statements and submissions to governmental authorities; public interest statements; constitutionally-protected conduct and speech.
(f) Deadlines for filing special motion to strike and for hearing by the court
(g) Stay of discovery pending ruling
(h) Complaint includes cross-complaint
(j) Reporting to Judicial Council; transmittal; maintenance of information
CCP § 425.16 - Anti-SLAPP Motion
(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
When Anti-SLAPP was new, the recitation in the first two sentences of ¶ (a) were thought to be necessary to overcome potentially opposing court opinions and rules. Arguably, today those two sentences are merely surplusage, and the only important part of ¶ (a) is the requirement that § 425.16 "shall be construed broadly", i.e., § 425.16 should be interpreted to benefit as many defendants as possible.
(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 Constitution or the 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.
Paragraph (b)(1) sets out the most basic Anti-SLAPP rules, including that there is a two-step analysis that the court must undertake:
First, the defendant has the burden of proving that the plaintiff's cause of action arose from either:
An act taken by the defendant in furtherance of her rights to petition in connection with a public issue, or
An act taken by the defendant in furtherance of her rights to free speech in connection with a public issue.
If, and only if, the defendant has established that the plaintiff's complaint arises from one or both of those prongs, then the defendant has made her prima facie (layman: "adequate") showing that will satisfy her Anti-SLAPP motion. The burden then passes to the plaintiff to prove the following.
Second, the plaintiff has the burden of showing that, despite the defendant's proof, the plaintiff will probably prevail anyway, i.e., the plaintiff's proof will more likely than not allow the plaintiff to overcome the defendant's defenses and win at trial.
Just fully understand the above, and you will have successfully mastered fully 90% of California Anti-SLAPP law. Paragraph (b)(1) builds the skyscraper and all of is concrete floors, and everything else that comes later is just carpet, paint, fittings, and furniture.
(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.
Paragraph (b)(2) strictly limits the proof that the court may consider on an Anti-SLAPP motion to just two things:
First, the pleadings of the parties, which is in the vast majority of cases is just the plaintiff's original complaint, but can also include the defendant's answer. In rare cases, Anti-SLAPP motions can arise in response to a counterclaim or cross-claim, etc., and in such a case the wording of ¶ (b)(2) effectively puts all the pleadings filed by the parties at issue to the extent they are relevant to the Anti-SLAPP motion. (And, I've actually had one of these come up on a cross-claim, see also ¶ (h) below).
- and -
Second, on an Anti-SLAPP motion, the parties can submit affidavits (with supporting documents) to bolster their positions. Most of the time, the affidavits go to the second prong of the Anti-SLAPP test of ¶ (b)(1), which is whether the plaintiff will be able to show a likelihood of prevailing at trial despite the defendant's defenses. Which is to say that a plaintiff who files a complaint in an area that will be subject to Anti-SLAPP had better have their case fully ready for what amounts to an early "trial by affidavits", as that is what Anti-SLAPP motions often come down to.
(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.
Paragraph (b)(3) says that if the plaintiff is able to overcome the defendant's defenses and prove a likelihood of winning at trial, then that determination by the court cannot thereafter be used for any purpose, i.e., the plaintiff can't tout it at trial, or even use it to get past a later motion for summary judgment.
But what if the plaintiff can't make this showing and loses? Paragraph (b)(3) doesn't speak to that, and arguably this omission from the statute is what gives rise to so-called "SLAPPback" actions, i.e., malicious prosecution and abuse of process suits arising from a complaint that was kicked out on an Anti-SLAPP motion. Seems to me at least that this door should swing both ways, i.e., whichever way the court decides the Anti-SLAPP motion, neither party could use the finding later, which would nix SLAPPback actions without the necessity of a separate statute to deal with those.
(1) Except as provided in paragraph (2), 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.
JayNote: Paragraph (c)(1) treats defendants who win Anti-SLAPP motions much better than plaintiffs who win Anti-SLAPP motions.
If a defendant wins an Anti-SLAPP motion, the defendant is entitled to attorney's fees and costs, period-the-end, oh, except in the rare cases described in ¶ (c)(2) next following.
If a plaintiff wins an Anti-SLAPP motion, the plaintiff can only get attorney's fees and costs if, and only if, the plaintiff can convince the court that the motion was either frivolous (e.g., an Anti-SLAPP motion brought against a case alleging simple breach of contract) or that the defendant brought the motion with the intent to cause delay. How a plaintiff could prove the latter is beyond peradventure, unless the plaintiff can somehow get around attorney-client privilege and work product immunity, which is often quite impossible to do.
PRACTICE POINTER: Paragraph (c)(1) only awards attorney's fees and costs against a party, but not the party's attorney. Thus, Anti-SLAPP motions are frequently combined with Motions for Sanctions against the involved attorney under CCP § 127.8.* Note, however, that the Anti-SLAPP motion procedure, and the procedure under CCP § 127.8(c)(1) doesn't match up very well, and so some finessing of motion dates may be required so that both motions are heard at the same time. This probably requires that the unfiled Motion for Sanctions be first served on the party's attorney, and then if the offensive pleading is notwithdrawn, then both the Motion for Sanctions and the Anti-SLAPP motion be filed at the same time, with a request that both motions be heard at the same time.
* Or FRCP 11, of course, if the action is in federal court.
(2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney's fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney's fees and costs pursuant to subdivision (d) of Section 6259, or Section 11130.5 or 54960.5, of the Government Code.
The defendant cannot recover attorney's fees and costs, at least under the California Anti-SLAPP laws, for actions brought under any of Government Code § 6259 (actions to force public records disclosures) or Government Code §§ 11130, 11130.3, 54960 and 54960.1 (actions to compel recording of closed governmental sessions).
(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.
Governmental enforcement actions often are immune from Anti-SLAPP.
IMPORTANT! Section 425.17 provides two other types of actions against which an Anti-SLAPP motion may not be brought, being (1) class actions, and (2) trade disparagement lawsuits.
(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:
This is a definitional section that expands what is included in the first prong of ¶ (b)(1) above. Note the word "includes", which means that what follows is meant to be illustrative o the things that are protected under Anti-SLAPP, but which can include other things that meet the definition as well, whether similar or not to what follows. Remember, this entire § 425.16 is to be "construed broadly" to meet its purposes as stated in ¶ (a).
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
Paragraph (e)(1) is very broad in its scope, and includes things such as legal pleadings, testimony, and complaints to governmental agencies.
Example No. 1
: Henry sues John on an unpaid promissory note. John files a lawsuit alleging that Henry's lawsuit wrecked John's credit and reputation and caused John $100 trillion or so in damages. Henry's suit is a writing made in a judicial proceeding and is protected.
Example No. 2: In a rezoning dispute before City Council, neighboring homeowner Mary complains without any basis whatsoever that Larry the real estate developer is a "no good money launderer and drug dealer who never pays his child support". Mary's statement is an oral statement made in an executive proceeding and is protected.
(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,
See comments to ¶ (e)(1) above.
(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, or
JayNote: The term "public interest" here is subject to judicial interpretation, and that interpretation has historically been very broad.
Example No. 1
: On an internet discussion board for the local baseball little league, Linda posts that "Coach Harry is a creepy and worthless excuse for a human who has no business being around children". Linda's statement is a writing made in a public place about an issue of public interest.
Example No. 2: Sally e-mails her brother Don and copies her cousin Joey, stating without any basis that "You, Don, embezzled money from my parents while they were alive." Sally's statement was not made in a public place or in connection with a public interest, and Don's subsequent suit for defamation should survive an Anti-SLAPP motion.
(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.
Paragraph (e)(4) further expands the protections to include other "conduct" that is within the constitutional protections of the right to petition and free speech.
Example: Harry burns a U.S. flag in protest of whatever. Harry's next door neighbor Petra sues Harry, claiming that she is very patriotic and Harry's burning of the U.S. flag caused her extreme emotional stress. Harry burning of the U.S. flag is protected by the U.S. Constitution as interpreted by the U.S. courts, and thus is protected conduct.
(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.
Under sentence 1 of (f), a defendant has an absolute right to file an Anti-SLAPP motion so long as it is filed within 60 days of the complaint; after 60 days, however, the court may or may not exercise its discretion to allow the Anti-SLAPP motion.
Example: Pete sues Sally for $100 million dollars in damages against Sally for something Sally said at a political rally and which would be protected by Anti-SLAPP. The next day, however, Pete files for bankruptcy protection, the case is stayed, and it takes 18 months before Pete's bankruptcy petition is dismissed. Twenty days after that, Sally seeks permission to file her Anti-SLAPP motion. The Court hearing Pete's damages claim should exercise its discretion to allow Sally to file her Anti-SLAPP motion.
(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.
The baseline rule is that an Anti-SLAPP motion is heard on the parties' pleadings and affidavits only, and that no further discovery will be allowed (which might be an additional form of harassment of the defendant) until and unless the Anti-Motion is resolved in favor of the plaintiff.
California, however, allows a plaintiff to obtain to obtain discovery, subject to two caveats.
The first caveat is pretty strange, because it requires a party seeking discovery to make that request "on noticed motion". Considering that a "noticed motion" often can by itself take 30 days at a minimum to be heard in California, this means that there is a really good chance that the Anti-SLAPP motion will be heard long before the motion to allow discovery, particularly if the defendant waited until late in the 60-day window to file the Anti-SLAPP motion.
The second caveat is that the party seeking such discovery has to show "good cause", which means that this is another thing that is within the discretion of the trial judge to allow or disallow, i.e., whether the party really and truly needs the discovery, or just wants to harangue the other party at a deposition or run up their fees and costs with a gazillion document requests. In my own experience, the overwhelming majority of the cases where such discovery is sought falls squarely into the latter category, i.e., thinly-disguised harassment.
(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.”
As ¶ (h) indicates, Anti-SLAPP issues can arise from pretty much any type of pleading, and is not restricted to complaints.
(i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.
See CCP 904.1(13).
(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.
Interestingly, ¶ (j)(1) doesn't appear to carry any penalty for non-compliance, and, anecdotally, it seems like not just a few counsel ignore this mandate. I always do it though.
(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.
What the Judicial Council does with this information, if anything, is anybody's guess.
California CCP 425.16 Opinions