It is probably a safe bet that the vast majority of people have never heard the term “SLAPP”, even though it is a major factor in California litigation. It is also likely that if you are reading this, it is because you are involved in litigation where the issue of an anti-SLAPP motion has arisen, and you are looking for information. The information I provide below will give you a very good understanding of SLAPP suits, anti-SLAPP motions, and SLAPP-back claims.
What is a SLAPP lawsuit and an anti-SLAPP motion?
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. I’ve coined the phrase “Spurious Litigation Against Public Participation” because that better captures both the goal of the plaintiff and the nature of the lawsuit. I find that many of these actions are anything but “strategic”.
The action is spurious and frivolous because the typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP suit may also intimidate others from participating in the debate.
Approximately 30 states have enacted anti-SLAPP legislation. Currently there is no Federal SLAPP law, but it is anticipated that a Federal version will soon be enacted, because of the importance of free speech in America. California has a unique variant of anti-SLAPP legislation which has led to a significant volume of SLAPP litigation in this state. California is truly the anti-SLAPP capitol. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone, with just 341 case spread among the rest of the states with anti-SLAPP statutes. More than 300 published court opinions have interpreted and applied California’s anti-SLAPP law.
Before proceeding any further, let’s be sure you a good grasp of the lingo. The “SLAPP” is the lawsuit filed by the Plaintiff against the Defendant, which seeks to either silence the Defendant’s free speech, or to prevent the Defendant from seeking a “right of petition“. The Defendant seeks to have the SLAPP action dismissed by filing what is called a Special Motion to Strike. That Special Motion to Strike is the anti-SLAPP motion. The SLAPP can be, and often is, a cross-complaint filed in the action. That is where many attorneys who are unfamiliar with SLAPP law get into trouble, because they file a cross-complaint that attacks the complaint, and that is a SLAPP.
California’s anti-SLAPP Statute
California’s anti-SLAPP law is contained in Code of Civil Procedure § 425.16, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. Although called a motion to strike, the anti-SLAPP statute is a complicated hybrid of a number of motions from demurrers to motions for summary judgment, with a dash of injunctive relief. When a defendant is served with a lawsuit the defendant asserts is designed to improperly silence his speech, he has the option of filing an anti-SLAPP motion in the first 60 days after service (although the court can extend this deadline on a showing of good cause). If the plaintiff files an amended complaint at any point, that restarts the 60 day clock. It is sometimes the case that the original complaint will not be a SLAPP, but the plaintiff either adds a cause of action or allegation that makes the amended complaint a SLAPP.
Once filed, the anti-SLAPP motion stays any discovery. This advances the purpose of the underlying statute, which is intended to save defendants from spurious defamation actions, but at the same time it can frustrate the plaintiff with a legitimate claim, who now must show a reasonable likelihood of success in the action, with his hands tied by the discovery stay. (The plaintiff can ask the court for permission to conduct limited discovery on a showing of good cause.)
Here are the three important anti-SLAPP statutes, but the heart of legislation is contained in subpart (e) of Code of Civil Prodecure section 425.16, which provides:
(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:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(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;
(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;
(4) or 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.
First Prong: Defendant Must Show that the Speech Falls Under the anti-SLAPP Law
To win an anti-SLAPP motion, the defendant must first show that the speech in question falls under one of the four sections set forth above. But that is just the first prong of the analysis. If the defendant proves the speech was protected, the plaintiff can show that he is still likely to prevail on the action. In other words, defamatory speech is not protected simply because it falls under one of the four sections. (Keeping in mind that speech is not defamatory if it is privileged.)
The least clear of the four sections, and the section that leads to the most contentious anti-SLAPP disputes, is section 4. Section 4 is a catch-all, seeking to protect “the constitutional right of free speech in connection with a public issue or an issue of public interest.” If you are not sure what constitutes an “issue of public interest” you are not alone. These are the words from the statute that are giving the courts the most trouble.
Here is a typical scenario to illustrate the point. A person goes to a doctor and is very displeased with the appointment. The doctor did nothing but an excellent job, but the patient felt he had to wait far too long in the waiting room. The patient goes home and goes to Vitals.com, where he can post a review of the doctor. He writes that the doctor made him wait too long, but then realizes that sounds pretty trivial. He wants to really hurt the doctor, so he erases that, and instead posts that the doctor is a quack who should lose his license.
Having sufficiently vented, the patient gives the matter no further thought, but the doctor sees the post and sues the patient for defamation. Is the doctor’s defamation action a SLAPP? Can the patient successfully bring an anti-SLAPP motion?
As set forth above, that will depend on a number of factors. Is the doctor’s performance a matter of “public interest”? Most courts have found that a doctor’s performance is one of public interest, but some look at the forum and the number of people involved. Some hold that the public’s interest in this one doctor is not broad enough to be a matter of public interest, and would deny an anti-SLAPP motion on that basis, never reaching the second prong. Others hold that a doctor’s performance, discussed on this website specifically intended to provide a forum for patients to discuss doctors, would constitute a matter of public interest, and would find that defendant has met the first prong, leading us to the second prong.
Second Prong: Is the Plaintiff Likely to Succeed?
If the court does decide that the ill-spirited post by our hypothetical patient is protected speech under the anti-SLAPP statute, then the analysis moves to the second prong: Can the plaintiff make a prima facie case? Stated another way, can the plaintiff show that he is likely to succeed. You see, just because someone is speaking on a matter of public interest, that does not mean they get to say whatever they want. The speaker is still subject to defamation laws. So if the defendant wins on the first prong, the plaintiff must put on sufficient evidence to show that even though the speech falls under the statute, it is still defamatory.
How Will the Court Decide?
The winner of our hypothetical will depend first on whether the judge feels that a posting on Vitals.com about a single doctor is a matter of public interest.
If the court finds that it is a matter of public interest, the burden will shift to the doctor to show sufficient evidence to prove his case. The fact that the doctor was called a quack would likely be found to be merely colorful hyperbole and not defamatory. There would be no evidence the doctor could put on to show he is not a quack, because there is no “quack meter” we can use to measure his “quack quotient . Even if the doctor can show a string of awards, that would probably not be sufficient to show that this patient did not consider him to be a quack.
On the other hand, if the patient truthfully answers during discovery that his only beef with the doctor was that he made him wait too long, then the “quack” remark could be taken as an unwarranted attack on the doctor’s professionalism with no basis for doing so, and the court could conclude that the statement was defamatory.
Same facts, different results, and we don’t even get to the evidence until the court decides that the speech was a matter of public interest, or involved a right of redress.
Frankly, the procedural requirements of section 425.16, its interaction with other statutes such as Civil Code 47 (the statute defining what is privileged speech) and the latest definition of “public interest”, which changes from week to week, is often far too challenging for a trial court judge to decipher in the limited time he or she has to consider an anti-SLAPP motion.
A bad decision by the judge can be devastating to the defendant or plaintiff. If the special motion is denied when it should have been granted, then the defendant remains hostage to the action. In an effort to minimize this possibility, the statute provides that the order denying the motion is immediately appealable, but that is costly and time-consuming, which is what the anti-SLAPP statute was trying to prevent in the first place. Conversely, improperly (or properly) granting an anti-SLAPP motion will entitle the defendant to a mandatory award of reasonable attorney fees. This has turned into a significant problem because there are many unethical attorneys who submit inflated fee applications following a successful anti-SLAPP motion. I am frequently retained to testify as an expert to challenge these inflated bills, and thus far I have always been successful in having them reduced, but without such testimony far too many judges are rubber-stamping attorney fee motions, which I have seen exceed $100,000. And there are no “take-backs” when it comes to SLAPP suits. Once an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending or even dismissing his complaint.
Any of the following types of actions (and perhaps more because the law is expanding) can be a SLAPP suit:
- Malicious Prosecution or Abuse of Process.
- Invasion of Privacy.
- Intentional Infliction of Emotional Distress.
- Interference With Contract or Economic Advantage.
As you can see, many actions can result in an anti-SLAPP motion, and such a motion can be a costly and inequitable minefield if the judge fails to fully understand the law. If you are going to enter that minefield, you need an attorney who is a recognized expert in this field. You need Morris & Stone, attorneys whose primary area of practice is defamation (slander and libel) and the accompanying SLAPP laws. Call (714) 954-0700 for a free telephone consultation.