Anti-SLAPP Motions in California
March 26, 2018
The U.S. court system handles a vast array of civil lawsuits, from small personal or business disputes to massive corporate matters. In any system of this size, abuses are bound to happen. One notable abuse of the judicial system involves the strategic use of meritless lawsuits, known as SLAPPs, to silence or suppress dissent, criticism, or certain other constitutionally protected activities. California law provides strong protections for businesses and people who are subjects of a SLAPP.
What Is a SLAPP?
“SLAPP” stands for “Strategic Lawsuit Against Public Participation.” It refers to a lawsuit brought in an effort to intimidate a person or business into silence. The plaintiff in a SLAPP typically does not expect to win. Their purpose is to burden the defendant with litigation costs, to the point that it is preferable for the defendant to cease the activity that is the subject of the case.
The First Amendment to the U.S. Constitution protects the freedom of speech and the right to petition the government for redress of grievances. These rights are subject to some limitations, such as defamation, which is a common basis of a SLAPP lawsuit. The elements of a defamation claim vary somewhat from one jurisdiction to another. At a minimum, a plaintiff alleging defamation must be able to establish: (1) that the defendant published a false statement; (2) that the defendant knew that the statement was false, or was reckless as to its falsity; and (3) that the publication of the statement caused financial harm to the plaintiff. Public figures must additionally prove that a defendant acted with “actual malice” in publishing a false statement, as established by the U.S. Supreme Court in New York Times Co. v. Sullivan.
In addition to defamation, SLAPPs may also involve claims for nuisance, intentional infliction of emotional distress, tortious interference, malicious prosecution, or abuse of process. As mentioned earlier, the goal of a SLAPP is not to win a judgment against the defendant, but instead to intimidate the defendant into silence. A key feature of a SLAPP is therefore a lack of legal merit. It is a frivolous lawsuit brought in bad faith.
California’s Anti-SLAPP Statute
SLAPPs can be difficult to identify. A plaintiff filing a lawsuit in bad faith will often go to great lengths to make their lawsuit look legitimate, and they might even believe that their claims have merit. The fact that a defendant calls a lawsuit frivolous does not carry much weight on its own—defendants often call lawsuits frivolous. Anti-SLAPP laws are meant to balance the rights of free speech and petition with the need to prevent the use of the court system to silence people’s exercise of those same rights.
California was the first state in the country to enact a law protecting individuals and businesses against SLAPPs. Section 425.16 of the California Code of Civil Procedure, enacted in 1992, states that “it is in the public interest to encourage continued participation in matters of public significance,” without “abuse of the judicial process.” The statute takes on the difficult task of defining a SLAPP. According to § 425.16(e), a SLAPP is a lawsuit that arises from a wide range of written or oral statements by a defendant regarding legal, legislative, or judicial proceedings, or other “issues of public interest.”
Anti-SLAPP Motions in California
The California anti-SLAPP statute allows defendants to seek the dismissal of a complaint at the beginning of the lawsuit, before the expensive and time-consuming discovery process begins. Filing a “special motion to strike” halts the discovery process. The court will hold a hearing on the motion to determine whether the case should be allowed to proceed.
The California Supreme Court described a two-part test for special motions to strike in Navallier v. Sletten in 2002. First, the defendant must establish that the lawsuit is based on a “protected activity,” as defined by § 425.16(e). Second, they must show “a probability of prevailing on the claim.” By staying all discovery upon the filing of a special motion to strike, the anti-SLAPP statute gives the defendant something of an advantage. The plaintiff must be able to rebut whichever evidence the defendant presents—proving that their case has at least some merit—while having access to little to no material from the defendant.
If a defendant can meet both of the requirements identified in Navallier, the court should grant the motion, resulting in the dismissal of the complaint. Furthermore, the anti-SLAPP statute authorizes the court to order the plaintiff to pay the defendant’s attorneys’ fees and costs in some situations.