Samuel Rudolph

We take our rights to free speech and petition quite seriously in this country– more so than in most nations. The purpose of California’s Anti-SLAPP statute is to protect and encourage participation in matters of public interest or significance.[CCP § 425.16] Its function is intended to “nip in the bud” those strategic lawsuits against public participation [SLAPP] that chill the valid exercise of the constitutional rights of free speech and petition in matters of public interest. Braun v. Chronicle Publishing Co. (1977) 52 Cal. App. 4th 1036, 1047.

Broad in scope and application, the anti-SLAPP statute provides a special motion to strike causes of action that chill the lawful exercise of free speech or petition rights for redress in the courts. This includes the abuse of the judicial process through meritless claims in litigation. Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1055-1056; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 22 Cal. App. 4th 1049.

The anti-SLAPP statute creates a quick right of action, early in the litigation and near the initiation of a lawsuit. The rationale for its early filing is to dismiss those causes of action, quickly and with minimal time and cost to the parties, that threaten the valid exercise of free speech or petition rights and access to the courts.

An anti-SLAPP motion is similar to a motion for summary judgment. It can force the non-moving party early on to present admissible evidence to substantiate its claims and allegations. If granted, the motion can result in the dismissal of particular causes of action or the entire action.

Unlike an MSJ, however, the moving party must bring its anti-SLAPP motion early in the litigation. Subject to the discretion of the Court, an anti-SLAPP motion must be filed within 60 days of service of the first operative complaint containing any claim that may be subject to the statute. CCP § 425.16 [f]. As stated above, the policy of the anti-SLAPP statute is intended to provide a speedy means of resolving meritless claims that “chill” or threaten free speech or petition on matters of public interest. Subject to the docket conditions of the Court, anti-SLAPP motions to strike must be heard within 30 days of filing. It is specifically not meant to be used as a vehicle to obtain the dismissal of claims in the middle of litigation. Newport Harbor Ventures v. Morris Cerullo World Evangelism, (2018) 4 Cal 5th 637.

Activities Protected under the Anti-SLAPP Statute

Foremost among the safeguards [or provisions or objectives] of California’s anti-SLAPP statute is the protection of any and all statements made in connection with an official proceeding, including executive, legislative or judicial hearings. [CCP §425.16(c)(2)]. All statements made pursuant to an official proceeding are considered protected. Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal 4th 1066.

In the judicial context, all litigation related statements are protected, including notices, investigation records, and negotiations “in connection with civil litigation.” Navellier v. Sletten (2002) 29 Cal 4th 82. Even pre-lawsuit communications are protected speech if the lawsuit was not frivolous but was brought with serious consideration and contemplated in good faith. Action Apt. Ass’n Inc. v. City of Santa Monica (2007) 41 Cal 4th 1232. Litigation-related statements include investigative reports and settlement negotiations. Seltzer v. Barnes (2010) 182 Cal App 4th 953. Thus the litigation privilege, protecting speech in connection with pending legal actions, is often a factor for determining whether a communication falls within anti-SLAPP protection. Flatley v. Mauro (2006) 39 Cal 4th 299

Depending on the context, some allegations that courts have struck as protected speech under the anti-SLAPP statute have been claims of malicious prosecution, abuse of process, interference with prospective business advantage, intentional infliction of emotional distress, and – the most common example – defamation.

The protections of the anti-SLAPP statute are, however, broader and more inclusive than statements made in connection with litigation alone. Generally speaking, all statements on matters of significant public interest are protected, provided these statements are made in a public place or a “public forum” as understood under the First Amendment. Protected also is “any written or oral statement or writing made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law.” CCP § 426.16(e)(1). Examples of these include administrative hearings and quasi-governmental hearings such as those conducted by National Association of Securities Dealers and the Securities and Exchange Commission. Communications made pursuant to medical peer review proceedings and homeowners’ associations are also protected.

Procedures under the Anti-SLAPP Statute

Cases brought under California’s anti-SLAPP statute employ a two-part burden-shifting process, involving the two “prongs” of the statute. First, the alleged activity underlying the anti- SLAPP claim must arise out of the valid exercise of the constitutional rights of free speech or petition. If the moving party cannot meet this initial burden, the motion will be denied and the action allowed to proceed.

If the moving party – in most cases, the defendant – cannot meet its burden in convincing the Court that the statements or actions in question are thus protected, the burden shifts to the non-moving party to show that its causes of action have sufficient merit to proceed in the litigation. In this second “prong” of the process, the non-moving party must establish the probability of success in prevailing on the merits of its claims. If it can, then the motion is denied and the action allowed to proceed. Thus, the moving party can prevail on an anti-SLAPP motion only if 1] the opposing party’s allegations arise out of protected speech or activity and 2] the subject causes of action lack even the minimal merit needed to proceed in the litigation. Navallier v. Sletten (2002) 29 Cal 4th 82 . The lawsuit may proceed if the non-moving party makes a prima facie showing that the causes of action are meritorious and will probably prevail at trial. This is not an onerous burden and is one similar to that of showing probable cause or, the context of an MSJ, evidence sufficient to create a genuine issue of material fact.

How an Anti-SLAPP Motion Impacts the Litigation

Once an anti-SLAPP motion is filed, it essentially freezes the pleadings from any amendments, including an amended complaint or the dismissal of particular causes of action. It stays all discovery in the action until the motion is resolved, whether by the trial court or on appeal. The filing of an anti-SLAPP motion can significantly delay the progress of litigation.

The prevailing party on an anti-SLAPP motion is entitled to recover attorney’s fees. If the moving party (usually the defendant) prevails, it generally is awarded fees. However, the standard for an award of fees is different for the non-moving party (usually the plaintiff). If the non-moving party prevails, it is entitled to fees only if the anti-SLAPP motion is found to have been frivolous or solely intended to cause unnecessary delay.

Exceptions Not Subject to the Anti-SLAPP Statute

Despite its application to a broad range of activity involving free speech and petition, the anti-SLAPP statute is not without its exceptions. A police officer or prosecutor can sue for defamation without having the claim struck under the anti-SLAPP statute. Actions brought for the “public benefit” may be beyond the reach of the statute. Cruz v. City of Culver City (2016) 2 Cal App 5th 239, 249-250.Actions brought solely on behalf of the public interest are not subject to anti-SLAPP protection. Examples of these include causes of action for unfair business practices, qui tam [false claim] actions, and actions relating to commercial speech such as advertising. Northern Calif. Carpenters Regional Council v. Warmington Hercules Assocs. (2004) 124 Cal App 4th 296, 301-302

In overview, the protections of California’s anti-SLAPP statute are sweeping. The question of its application to particular situations can be a close one in a complex case. One fundamental question to ask is whether the thrust of the litigation arises out of protected speech or activity.

Samuel Rudolph has been practicing in all aspects of employment law and related civil rights for over 25 years. He has served as a judge pro tem for the Alameda County Superior Court, where he now volunteers as a mediator in its ADR Division. He also provides private mediation services for other venues and is available to assist CELA members in the resolution of their employment disputes.