California42518 California SLAPP_Back California42518AntiSlappActsLaw
Unofficial contents of § 425.18 - SLAPPBack Actions; Motion To Strike; Limitations Periods; Discovery; Remedies (this statute further down on this page)
(a) Legislative purpose and intent
(b) Definitions of SLAPPback and special motion to strike
(c) Certain provisions do not apply to special motions to strike a SLAPPback
(d) Procedure on special motions to strike a SLAPPback; deadlines and discretion; scheduling by clerk
(e) Limited discovery rights
(f) Attorney's fees and costs if frivolous or delaying
(g) Appealability of special motion to strike a SLAPPback
(h) Where prior cause of action was illegal
(i) Non-applicability to public entities
CCP 425.18 - SLAPPBack Actions; Motion To Strike; Limitations Periods; Discovery; Remedies
(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.
The "purpose clause" that constitutes ¶ (a) is meant to override in some (vaguely-described) part the purpose clause of § 425.16(a) as it relates to Anti-SLAPP actions being broadly construed.
(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.
In English, this is what is going on: Assume that the original plaintiff brings a lawsuit against the defendant. The defendant brings an Anti-SLAPP motion under § 425.16. That motion is successful, and the plaintiff's case is dismissed as an abusive lawsuit, called (in the vernacular of all this) a "SLAPP suit".
The winning defendant then brings its own lawsuit against the plaintiff, alleging either malicious prosecution or abuse of process or (usually) both, based on the dismissal of the plaintiff's lawsuit on the defendant's Anti-SLAPP motion. This new lawsuit brought by the defendant is known as a "SLAPPback lawsuit".
Considering that (1) the defendant didn't win on the merits against the plaintiff (which is necessary prerequisite of either a malicious prosecution or abusive of process suit), and indeed neither side even got to try their respective cases, and (2) the main purpose of Anti-SLAPP laws in general and § 425.16 in particular, is to deter litigation, this new lawsuit by the original defendant against the original plaintiff is about as abusive as the original action (if not moreso), and thus the original defendant's new lawsuit is subject to being stricken under this § 425.17 in what is known as an "Anti-SLAPPback motion".
The practical effect of § 425.17 is to say: "Once the original defendant wins its original Anti-SLAPP motion, that cuts off the litigation entirely, period-the-end. No more litigating, and certainly no malicious prosecution or abuse of process suits. The litigation is totally and completely over, and everybody pack your briefcases and go home."
If a defendant desires to later bring a malicious prosecution or abuse of process lawsuit against the original plaintiff, the defendant should NOT bring an Anti-SLAPP motion, but instead wait and bring a motion for summary judgment and obtain what will amount to an adjudication on the merits. Otherwise stated, the defendant who brings an Anti-SLAPP motion very likely forfeits the right to later bring a malicious prosecution or abuse of process action.
Notably, § 425.17 has no analog in the Anti-SLAPP statutes of other states, and was rejected as unnecessary by the drafting committee of the Uniform Public Expression Protection Act (UPEPA).
(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.
Here is what doesn't apply to an Anti-SLAPPback motion:
§ 425.16(c) ~ Attorney's fees.
§ 425.16(f) ~ Deadlines for motion and hearing by the court.
§ 425.16(g) ~ Stay of discovery pending ruling.
§ 425.16(i) ~ Appeals of Anti-SLAPP motions.
§ 904.1(13) ~ Appeals of Anti-SLAPP motions.
(1) A special motion to strike a SLAPPback shall be filed within any one of the following periods of time, as follows:
An Anti-SLAPPback motion has much more liberal rules for allowing the defendant to file the motion: 120 days mandatory, 6 months discretionary, and at any time in extraordinary cases.
(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.
The Court is required to hear an Anti-SLAPPback motion within 30 days.
(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.
Unlike an Anti-SLAPP motion that creates an automatic stay of discovery against both parties until that motion is heard, there is no such automatic stay with an Anti-SLAPPback motion under ¶ (c) above. Instead, the party who filed the Anti-SLAPPback motion can conduct discovery to their heart's content ("Here, enjoy this document request with 393 categories!"), while the party who brought the SLAPPback complaint must go into court and request permission to conduct discovery (and good luck with that).
(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.
In the extremely rare, and almost inconceivable, circumstance where the SLAPPback complaint is valid, if the SLAPPback defendant files a frivolous or delaying Anti-SLAPPback motion, that defendant can suffer an award of attorney's fees or costs.
(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.
Unlike an Anti-SLAPP motion which provides for a mandatory appeal to be heard if the losing party chooses to appeal, the losing party on an Anti-SLAPPback motion must petition the appellate court for what amounts to a discretionary appeal through a peremptory writ, i.e., the appellate court can exercise its own discretion as to whether to even hear the appeal at all.
(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.
Say ¶ (h) three times fast, or imbibe of your favorite alcoholic beverage and try to figure out what it means. Truth is, you probably don't need to worry about it, because the circumstances where this will arise will be few and far between. Very, very few, and very, very far between.
Paragraph (h) says that if the original plaintiff filed a lawsuit that was prohibited as a matter of law, then in response to a SLAPPback lawsuit by the original defendant, the original plaintiff cannot bring an Anti-SLAPPback motion.
Example: California law says that a vexatious litigant may not file a lawsuit without first obtaining court approval. Vera has previously been found to be a vexatious litigant. Without court approval, Vera brings a new lawsuit against defendant Dave for defamation. Dave files an Anti-SLAPP motion to strike Vera's new lawsuit, the Anti-SLAPP motion is granted, and Vera's defamation lawsuit is dismissed.
Dave then brings his own lawsuit against Vera for abuse of process and malicious prosecution. Because Vera's original lawsuit violated the vexatious litigant statute, her original action was "illegal as a matter of law", and she is prohibited under this ¶ (h) from bringing an Anti-SLAPPback motion.
(i) This section does not apply to a SLAPPback filed by a public entity.
Public entities are not prohibited from bringing Anti-SLAPPback motions under ¶ (i).
Having said that, it is very difficult to imagine a circumstance when a public entity would in its own name bring a malicious prosecution or abuse of process action, as that sort of action would normally seem to be personal to the public officer or employee involved. But I guess it is possible.
California CCP 425.18 Opinions