Dismissal Striking Public Expression Protection Anti SLAPP

Dismissal / Striking Cause of Action

Uniform Public Expression Protection Act (UPEPA)

 

SECTION 7. [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART.

 

(a) In ruling on a motion under Section 3, the court shall [dismiss] [strike] with prejudice a [cause of action], or part of a [cause of action], if:

(1) the moving party establishes under Section 2(b) that this [act] applies;

(2) the responding party fails to establish under Section 2(c) that this [act] does not apply; and

(3) either:

(A) the responding party fails to establish a prima facie case as to each essential element of the [cause of action]; or

(B) the moving party establishes that:

(i) the responding party failed to state a [cause of action] upon which relief can be granted; or

(ii) there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the [cause of action] or part of the [cause of action].

 

(b) A voluntary [dismissal] [nonsuit] without prejudice of a responding party's [cause of action], or part of a [cause of action], that is the subject of a motion under Section 3 does not affect a moving party's right to obtain a ruling on the motion and seek costs, attorney's fees, and expenses under Section 10.

 

(c) A voluntary [dismissal] [nonsuit] with prejudice of a responding party's [cause of action], or part of a [cause of action], that is the subject of a motion under Section 3 establishes for the purpose of Section 10 that the moving party prevailed on the motion.

 

Comments

§ 7 comment 1.

  • Section 7(a) recognizes that a court can strike or dismiss a part of a cause of action—for example, certain operative facts or theories of liability—and deny the motion as to other parts of the cause of action.

→ E.g., Baral v. Schnitt, 376 P.3d 604, 615 (Cal. 2016) (holding that California's statute can be utilized to challenge all or only part of a single cause of action, because a single cause of action may rely on multiple instances of conduct, only some of which may be protected).

§ 7 comment 2 ¶ 1.

  • Section 7(a)(1) establishes "Phase One" of the motion's procedure—applicability.
  • In this phase, the party filing the motion has the burden to establish the Act applies for one of the reasons identified in Section 2(b).
  • To use the Act, a movant need not prove that the responding party has violated a constitutional right—only that the responding party's suit arises from the movant's constitutionally protected activity.

→ THOMAS R. BURKE, ANTI-SLAPP LITIGATION § 3.2 (2019).

  • Nor does the moving party need to show that the responding party intended to chill constitutional activities (motivation is irrelevant to the phase-one analysis) or prove that the responding party actually chilled the movant's protected activities.

→ Id.

  • But "[t]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.
  • Moreover, that a cause of action arguably may have been 'triggered' by protected activity does not entail it [as] one arising from such."

→ Navellier v. Sletten, 52 P.3d 695, 708-09 (Cal. 2002).

  • Rather, the Act is available to a moving party if the conduct underlying the cause of action was "itself" an "act in furtherance" of the party's exercise of First Amendment rights on a matter of public concern.

 →See City of Cotati v. Cashman, 52 P.3d 695, 701 (2002).

  • The moving party meets this burden by demonstrating two things: first, that it engaged in conduct that fits one of the three categories spelled out in Section 2(b); and second, that the moved-upon cause of action is premised on that conduct.

→ See id.

  • In short, the Act's "definitional focus is not the form of the [non-movant's] cause of action but, rather, the [movant's] activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning."

→ Navellier, 52 P.3d at 711.

§ 7 comment 2 ¶ 2.

  • In many instances, the moving party will be able to carry its burden simply by using the responding party's pleadings.

→ See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) ("When it is clear from the plaintiff's pleadings that the action is covered by the Act, the defendant need show no more.").

  • As pointed out in Comment 2 to Section 6, a party is always free to use an opposing party's pleadings as stipulations and admissions, and when the Complaint spells out the cause of action and the activity underlying that cause of action, the moving party will be able to satisfy its burden rather easily.
  • For example, if a defendant is sued by a public official for defamation, and the Complaint identifies the allegedly defamatory statement made by the defendant, then the defendant should need to do no more than attach the Complaint as an exhibit to its motion—the Complaint itself would clearly demonstrate that the defendant is being sued for speaking out about a public official (undoubtedly a matter of public concern).

§ 7 comment 2 ¶ 3.

  • In other instances, the moving party will have to attach evidence to its motion to establish that the cause of action is based on the exercise of protected activity.
  • That's because a creative plaintiff can disguise what is actually a SLAPP as a "garden variety" tort action.
  • "Thus, a court must look past how the plaintiff characterizes the defendant's conduct to determine, based on evidence presented, whether the plaintiff's claims are based on protected speech or conduct."

→ BURKE, supra at § 3.4.

§ 7 comment 2 ¶ 4.

  • But the fact that the movant's burden must be carried with evidence—whether that be the responding party's pleadings or evidence the movant presents—does not mean the inquiry is a factual one.
  • On the contrary, the motion is legal in nature, and the burden is likewise legal.

§ 7 comment 2 ¶ 5.

  • Thus, the court should not impose a factual burden on the moving party — like "preponderance of the evidence" or "clear and convincing evidence" — typically seen in fact-finding inquiries.

§ 7 comment 2 ¶ 6.

  • Rather, like other legal rulings, the court should simply make a determination, based on the evidence produced by the moving party, whether a cause of action brought against the moving party is based on its (1) communication in a legislative, executive, judicial, administrative, or other governmental proceeding; (2) communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or (3) exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, on a matter of public concern.
  • It should do so without weighing the parties' evidence against each other, but instead by determining whether the evidence put forth by the movant establishes the legal standard.
  • If the moving party fails to prove the Act applies, the motion must be denied.

§ 7 comment 3.

  • Section 7(a)(2) is also part of "Phase One" of the motion's procedure.
  • Even if the Act applies for one of the reasons identified in Section 2(b), the Act may nevertheless not apply if the party against whom the motion is filed can establish the applicability of an exemption identified in Section 2(c).
  • A party seeking to establish the applicability of an exemption bears the burden of proof on that exemption.
  • Like establishing applicability under Section 2(b), the burden to establish non-applicability under Section 2(c) is legal, and not factual.
  • The responding party may use the moving party's motion, or affidavits or any other evidence admissible in a summary- judgment proceeding, to carry its burden.
  • And like the Section 2(b) analysis, the court should decide whether the cause of action is exempt from the act without weighing the evidence against that of the moving party, but instead by determining whether the evidence produced by the responding party establishes the applicability of an exemption.
  • If the responding party so establishes, the motion must be denied.
  • If the moving party proves the Act applies and the responding party cannot establish the applicability of an exemption, the court moves to "Phase Two" of the motion's procedure.

§ 7 comment 4 ¶ 1.

  • Section 7(a)(3)(A) establishes "Phase Two" of the motion's procedure — prima-facie viability.
  • Anti-SLAPP laws "do not insulate defendants from any liability for claims arising from protected rights of petition or speech.
  • [They] only provide[] a procedure for weeding out, at an early stage, meritless claims arising from protected activity."

→ Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co., 434 P.3d 1152, 1157 (Cal. 2019) (emphasis original) (citations omitted).

  • Phase Two (as well as Phase Three) is where that "weeding out" occurs.

§ 7 comment 4 ¶ 2.

  • In this phase, the party against whom the motion is filed has the burden to show its case has merit by establishing a prima-facie case as to each essential element of the cause of action being challenged by the motion.

→ See Baral v. Schnitt, 376 P.3d 604, 613 (Cal. 2016) (holding that a responding party cannot prevail on an anti-SLAPP motion by establishing a prima-facie case on any one part of a cause of action).

  • The moving party has no burden in this phase.
  • "Prima facie" means evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.

→ Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 376-77 (Tex. 2019) (prima-facie evidence "is 'the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true'"); Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002) ("[T]he plaintiff must demonstrate that the complaint is [ ] supported by a sufficient prima-facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.").

§ 7 comment 4 ¶ 3.

  • Precisely how the responding party carries its burden to establish a prima-facie case "will vary from case to case, depending on the nature of the complaint and the thrust of the motion."

→ Baral, 376 P.3d at 614.

  • But the responding party should be afforded "a certain degree of leeway" in carrying its burden "due to 'the early stage at which the motion is brought and heard and the limited opportunity to conduct discovery.'"

→ Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 44 Cal. Rptr. 3d 517, 529 (2006) (citations omitted).

California courts have "repeatedly described the anti-SLAPP procedure as operating like an early summary judgment motion."

→ THOMAS R. BURKE, ANTI-SLAPP LITIGATION § 5.2 (2019).

  • "[A] 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."

→ Yu v. Signet Bank/Virginia, 126 Cal. Rptr. 2d 516, 530 (Cal. Ct. App. 2002) (disapproved of on other grounds by Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 413 P.3d 650 (Cal. 2018)).

§ 7 comment 4 ¶ 4.

  • Accordingly, all a responding party must do to satisfy its burden under Phase Two is produce evidence that, if believed, would satisfy each element of the challenged cause of action.
  • A court may not weigh that evidence, but rather must take it as true and determine whether it meets the elements of the moved-upon cause of action.

→ Sweetwater Union High Sch. Dist., 434 P.3d at 1157.

  • If the responding party cannot establish a prima-facie case, then the motion must be granted and the cause of action (or portion of the cause of action) must be stricken or dismissed.
  • If the responding party does establish a prima-facie case, then (and only then) the court moves to "Phase Three" of the motion's procedure.

§ 7 comment 5 ¶ 1.

  • Section 7(a)(3)(B) establishes "Phase Three" of the motion's procedure—legal viability.
  • Even if a responding party makes a prima-facie showing under Section 7(a)(3)(A), the moving party may still prevail if it shows that the responding party failed to state a cause of action upon which relief can be granted or that there is no genuine issue as to any material fact and the party is entitled to judgment as a matter of law—in other words, that the cause of action is not legally sound.
  • In this phase, the burden shifts back to the moving party.
  • If the moving party makes a showing under Section 7(a)(3)(B), then the motion must be granted and the cause of action (or portion of the cause of action) must be stricken or dismissed.
  • If the moving party does not make such a showing—and the responding party successfully established a prima-facie case in "Phase Two"—then the motion must be denied.

§ 7 comment 5 ¶ 2.

  • For example, a plaintiff desiring to build a "big box" store sues a defendant for tortious interference based on the defendant's efforts to organize a public campaign adverse to the plaintiff.
  • The defendant moves to dismiss under the Act and establishes that the suit targets her First Amendment activity on a matter of public concern.
  • Thus, the motion moves to Phase Two. In that phase, the plaintiff is able to establish a prima-facie case on each essential element of its tortious interference cause of action.
  • Thus, the motion moves to Phase Three.
  • But in that final phase, the defendant shows that the claim is barred by limitations.
  • In such an instance, the court must grant the motion, because the defendant showed itself to be entitled to judgment as a matter of law.

§ 7 comment 5 ¶ 3.

  • Although Phase Three uses traditional summary judgment and Fed. R. Civ. P. 12(b)(6) language, it does not serve as a replacement for those vehicles.
  • On the contrary, summary judgment and other dismissal mechanisms remain options for defendants who cannot establish that they have been sued for protected activity.
  • In other words, to get to Phase Three—and be entitled to the Act's sanctions under Section 10—a movant must first prevail under Phase One by showing the Act's applicability.
  • But by employing a legal-viability standard, the Act recognizes that a SLAPP plaintiff can just as easily harass a defendant with a legally nonviable claim as it can with a factually nonviable one.

§ 7 comment 6.

  • Sections 7(b) and (c) recognize that a party may desire to dismiss or nonsuit a cause of action after a motion is filed in order to avoid the sanctions that accompany a dismissal under Section 10.
  • Both sections serve to maintain the moving party's ability to seek attorney's fees and costs—even though the offending cause of action has been dismissed—because the filing of a motion under the Act is costly, and many plaintiffs refuse to voluntarily dismiss their claims until a motion has been filed.
  • But a prudent moving party should take efforts to inform opposing parties that it intends to file a motion under the Act, so as to give them an opportunity to voluntarily dismiss offending claims before a motion is filed.
  • Courts may take a moving party's failure to do so into account when calculating the reasonableness of the moving party's attorney's fees.

§ 7 comment 7.

  • Section 7(b) protects a moving party from the gamesmanship of a responding party who dismisses a cause of action after the filing of a motion, only to refile the offending cause of action after the motion is rendered moot by the claim's dismissal.

§ 7 comment 8.

  • Once a motion has been filed, a voluntary dismissal or nonsuit of the responding party's cause of action does not deprive the court of jurisdiction.

§ 7 comment 9.

  • State law should dictate the effect of a dismissal of only part of a cause of action.

 

 

 

CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

OVERVIEW

 

SECTION 1 ... SHORT TITLE

 

SECTION 2 ... SCOPE

 

SECTION 3 ... SPECIAL MOTION FOR EXPEDITED RELIEF

 

SECTION 4 ... STAY

 

SECTION 5 ... HEARING

 

SECTION 6 ... PROOF

 

SECTION 7 ... [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART

 

SECTION 8 ... RULING

 

SECTION 9 ... APPEAL

 

SECTION 10 ... COSTS, ATTORNEY'S FEES, AND EXPENSES

 

SECTION 11 ... CONSTRUCTION

 

SECTION 12 ... UNIFORMITY OF APPLICATION AND CONSTRUCTION

 

SECTION 13 ... TRANSITIONAL PROVISION

 

[SECTION 14 ... SAVINGS CLAUSE]

 

[SECTION 15 ... SEVERABILITY]

 

[SECTION 16 ... REPEALS; CONFORMING AMENDMENTS]

 

SECTION 17 ... EFFECTIVE DATE

 

UNIFORM LAWS PROJECT

 

Drafting Committee for a Uniform Anti-SLAPP Act (mostly lately called the "Uniform Public Expression Protection Act"), began its project in 2017 and hopes to submit final Uniform Act by 2020. The author of this website, Jay D. Adkisson, is the American Bar Association's Business Law Section Adviser to this Committee, and the originator of this Uniform Law Commission project. Click here for more.

 

ARTICLES ON ANTI-SLAPP

 

ARTICLES CURRENT

 

2020.08.29 ... Federal Anti-SLAPP Legislation Re-Introduced In Congress But Needs Updating

__________

More Articles

 

UNITED STATES ANTI-SLAPP LAWS

 

Arizona  ..... A.R.S. § 12-751, et seq.

 

Alabama ..... No Anti-SLAPP statute when last checked.

 

Alaska ..... No Anti-SLAPP statute when last checked.

 

Arkansas  ..... A.C.A. § 16-63-502, et seq.

 

California  ..... C.C.P. § 425.16, et seq.

 

Colorado ..... No Anti-SLAPP statute when last checked.

 

Connecticut ..... No Anti-SLAPP statute when last checked.

 

Delaware  ..... 10 Del.C. § 8136, et seq.

 

Florida  ..... F.S. § 768.295

 

Georgia  ..... Ga.C. § 9-11-11.1.

 

Hawaii  ..... HRS § 634F-1, et seq.

 

Idaho ..... No Anti-SLAPP statute when last checked.

 

Illinois  ..... 735 ILCS 110/1, et seq.

 

Indiana  ..... I.C. § 34-7-7-1, et seq.

 

Iowa ..... No Anti-SLAPP statute when last checked.

 

Kansas  ..... Kan.Stat. § 60-5320

 

Kentucky ..... No Anti-SLAPP statute when last checked.

 

Louisiana  ..... C.C.P. Art. 971

 

Maine  ..... 14 Me.R.S. § 556

 

Maryland  ..... MD Code, Courts & Jud. Proceedings § 5-807

 

Massachusetts  ..... M.G.L. 231 § 59H

 

Michigan ..... No Anti-SLAPP statute when last checked.

 

Minnesota  ..... Mn.Stat. § 554.01, et seq.

 

Mississippi ..... No Anti-SLAPP statute when last checked.

 

Missouri  ..... Mo.Stat. § 537.528

 

Montana ..... No Anti-SLAPP statute when last checked.

 

Nebraska  ..... Neb.Rev.Stat. § 25-21, 242, et seq.

 

Nevada  ..... N.R.S. § 41.635, et seq.

 

 

New Hampshire ..... No Anti-SLAPP statute when last checked.

 

New Jersey ..... No Anti-SLAPP statute when last checked.

 

New Mexico  ..... N.Mex.Stat. § 38-2-9.1, et seq.

 

New York  ..... N.Y.Civ.Rights.L. § 70-a.

 

North Carolina ..... No Anti-SLAPP statute when last checked.

 

North Dakota ..... No Anti-SLAPP statute when last checked.

 

Ohio ..... No Anti-SLAPP statute when last checked.

 

Oklahoma  ..... Okla.Stat. § 12-1430, et seq.

 

Oregon  ..... O.R.S. § 31.150, et seq.

 

Pennsylvania  ..... 27 Pa.C.S.A. § 7707.

 

Rhode Island  ..... R.I.Gen.Laws § 9-33-1, et seq.

 

South Carolina ..... No Anti-SLAPP statute when last checked.

 

South Dakota ..... No Anti-SLAPP statute when last checked.

 

Tennessee  ..... Tenn.Stat. § 4-21-1001, et seq.

 

Texas  ..... Tex.Civ.Prac. & Rem.Code § 27.001, et seq.

 

Utah  ..... Utah Code § 78B-6-1401, et seq.

 

Vermont  ..... 12 V.S. § 1041.

 

Virginia ..... No Anti-SLAPP statute when last checked.

 

Washington  ..... Wa.Stat. § 4.24.525.

 

West Virginia ..... No Anti-SLAPP statute when last checked.

 

Wisconsin ..... No Anti-SLAPP statute when last checked.

 

Wyoming ..... No Anti-SLAPP statute when last checked.

 

District of Columbia  ..... D.C.St. § 16-5501, et seq.

 

Guam ..... 7 G.C.A. § 17101, et seq.

 

Puerto Rico ..... No Anti-SLAPP statute when last checked.

 

U.S. Virgin Islands ..... No Anti-SLAPP statute when last checked.

 

FEDERAL LEGISLATION: Speak Free Act of 2015 (not enacted, presumed dead).

 

 

CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

OVERVIEW

 

SECTION 1 ... SHORT TITLE

 

SECTION 2 ... SCOPE

 

SECTION 3 ... SPECIAL MOTION FOR EXPEDITED RELIEF

 

SECTION 4 ... STAY

 

SECTION 5 ... HEARING

 

SECTION 6 ... PROOF

 

SECTION 7 ... [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART

 

SECTION 8 ... RULING

 

SECTION 9 ... APPEAL

 

SECTION 10 ... COSTS, ATTORNEY'S FEES, AND EXPENSES

 

SECTION 11 ... CONSTRUCTION

 

SECTION 12 ... UNIFORMITY OF APPLICATION AND CONSTRUCTION

 

SECTION 13 ... TRANSITIONAL PROVISION

 

[SECTION 14 ... SAVINGS CLAUSE]

 

[SECTION 15 ... SEVERABILITY]

 

[SECTION 16 ... REPEALS; CONFORMING AMENDMENTS]

 

SECTION 17 ... EFFECTIVE DATE

 

OTHER INFORMATIONAL WEBSITES

by Jay D. Adkisson

 

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© 2020 by Jay D. Adkisson. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. Questions about this website should be directed to jay [at] jayad.com or by phone to 702-953-9617 or by fax to 877-698-0678. This website is https://antislapplaws.com