The anti-SLAPP process was intended to provide a quick, hopefully inexpensive means by which defendants, who were being sued in an effort to silence their free speech or right of redress, could dispose of such actions. But given time, attorneys and their clients will find a way to subvert almost any well-intentioned law. The American with Disabilities Act is another such example, where a law intended to prevent discrimination against the disabled morphed into an extortion racket by attorneys.
I have no involvement in the following case, and offer no opinion as to whether the anti-SLAPP process was abused, but the Court of Appeal cites it as a compelling reason why the legislature needs to consider whether the automatic right to appeal an anti-SLAPP ruling was such a good idea.
Here are the facts. A plaintiff in the San Francisco area sued for defamation for statements published in the Pujab Times. The matter dragged on for years, and in the third year some of the Defendants brought an anti-SLAPP motion, even though an earlier anti-SLAPP motion by different defendants had already been denied on the grounds that the Plaintiff was likely to prevail. The trial court again denied the motion, but the defendants appealed that ruling.
In affirming the trial court’s denial of the anti-SLAPP motion, the Court of Appeal stated:
We review the matter de novo, and we affirm, doing so without adding to the burgeoning California jurisprudence as to what is, or is not, an “issue of public interest.” For, such issue or not, plaintiff has met his burden under the anti-SLAPP statute-as the Jammu defendants essentially conceded. And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost-and prejudicial delay. It is time for plaintiff’s case to be heard on the merits. Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal.
In it’s decision, the Court discusses the history of the anti-SLAPP statute at length, including the amendment that was made in order to clear up confusion over what constituted a matter of “public interest”.
Shortly after this amendment, the Supreme Court decided Briggs, holding that an anti-SLAPP motion brought under section 425.16, subdivisions (e)(1) and (2) did not need to show that the statement concerned an issue of public significance. Doing so, the court expressly relied on the newly added language that section 425.16 “shall be construed broadly.” ( Briggs, supra, 19 Cal.4th at p. 1119, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Interestingly-if not presciently-the majority opinion ends with the observation that “[i]f we today mistake the Legislature’s intention, the Legislature may easily amend the statute.” ( Id. at p. 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) In dissent, Justice Baxter expressed concern that “[t]he majority’s holding expands the definition of a SLAPP suit to include a potentially huge number of cases, thereby making the special motion to strike available in an untold number of legal actions that will bear no resemblance to the paradigm retaliatory SLAPP suit to which the remedial legislation was specifically addressed.” ( Id. at p. 1129, 81 Cal.Rptr.2d 471, 969 P.2d 564 (conc. & dis. opn. of Baxter, J.).)
Whatever the reason, concern quickly galvanized in the direction that the anti-SLAPP statute was being misused. This concern immediately made its way to the Legislature, which in the 1999-2000 session, passed a bill precluding application of the anti-SLAPP statute to purely consumer interest actions. But Governor Davis vetoed the bill. This concern was resurrected in the 2003-2004 session, in Senate Bill 515,FN10 which passed, and became the new Code of Civil Procedure section 425.17, which begins with this observation: “The Legislature finds and declares that there has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16.” (Stats.2003, ch. 338, § 1.)
Concern that the anti-SLAPP procedure was being abused also extended to the courts, where various justices expressed the concern in various ways. Comments in three cases illustrate the point.
Navallier v. Sletten, supra, 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, involved the issue whether a defendant’s having filed counterclaims in a prior, unrelated proceeding in federal court was one arising from “protected activity.” ( Id. at p. 85, 124 Cal.Rptr.2d 530, 52 P.3d 703.) A divided Supreme Court held that it was. Claiming that such holding was an unwarranted expansion of the anti-SLAPP law, dissenting Justice Brown, writing for herself and Justices Baxter and Chin, asserted that the majority’s “presumptive application of section 425.16 will burden parties with meritorious claims and chill parties with nonfrivolus ones.” And she added this flourish: “The cure has become the disease-SLAPP motions are now just the latest form of abusive litigation.” ( Navellier v. Sletten, supra, 29 Cal.4th at p. 96, 124 Cal.Rptr.2d 530, 52 P.3d 703 (dis. opn. of Brown, J.).)
Moore v. Shaw (2004) 116 Cal.App.4th 182, 10 Cal.Rptr.3d 154 was a defendant’s appeal from the denial of an anti-SLAPP motion. The Court of Appeal affirmed and, holding that the motion was frivolous, reversed the trial court’s denial of attorney fees to the plaintiff. Doing so, Presiding Justice Klein ended with this: “We cannot help but observe the increasing frequency with which anti-SLAPP motions are brought, imposing an added burden on opposing parties as well as the courts. While a special motion to strike is an appropriate screening mechanism to eliminate meritless litigation at an early stage, such motions should only be brought when they fit within the parameters of section 425.16.” ( Id. at p. 200, fn. 11, 10 Cal.Rptr.3d 154.)
Moran v. Endres (2006) 135 Cal.App.4th 952, 37 Cal.Rptr.3d 786was an appeal by defendants who had been denied attorney fees, which defendants had prevailed in obtaining dismissal of only “one of many causes of action,” ( id. at p. 953, 37 Cal.Rptr.3d 786) and that for conspiracy, which is not a cause of action in any event. ( Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, 28 Cal.Rptr.2d 475, 869 P.2d 454.) Affirming the denial of attorney fees, an exasperated Justice Armstrong observed: “Section 425.16 was enacted because the Legislature found that ‘it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.’ Neither the public’s nor defendant’s right to participate was advanced by this motion.” ( Moran v. Endres, supra, at p. 955, 37 Cal.Rptr.3d 786.) A concurring Justice Mosk added this: “Code of Civil Procedure section 425.16 … has resulted in numerous appeals that involve various ambiguities and apparent unintended consequences.” ( Id. at p. 956, 37 Cal.Rptr.3d 786 (conc. opn. of Mosk, J.).)
The obvious example is found in the numerous cases that involve complaints that simply do not “arise from” protected activity, but generate anti-SLAPP motions nevertheless. Examples include actions against attorneys. ( Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1539, 52 Cal.Rptr.3d 712 [" ‘garden variety’ attorney malpractice"]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1187, 20 Cal.Rptr.3d 621 [duty of loyalty]; Jesperson v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630, 7 Cal.Rptr.3d 715; Moore v. Shaw, supra, 116 Cal.App.4th 182, 10 Cal.Rptr.3d 154 [breach of trust]; Beech v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82, 1 Cal.Rptr.3d 454 [failure to timely arbitrate].) And personal injury claims. ( Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193, 6 Cal.Rptr.3d 494 ["garden variety personal injury claims" against dietary product manufacturer].) And insurance coverage cases. ( State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 975, 121 Cal.Rptr.2d 719 [declaratory relief action to resolve coverage issues].)
But another, and more subtle, abuse can be found in a case where the defendant could in good faith claim that plaintiff’s action arose from protected activity, and thus could meet the burden under step one of the anti-SLAPP analysis. But as seen, that is only the beginning. And suppose further that defendant (or defendant’s attorney) knows that the plaintiff could meet the burden under step two. Defendant nevertheless files the anti-SLAPP motion, knowing that it will cause plaintiff to expend thousands of dollars to oppose it, all the while causing plaintiff’s case, and ability to do discovery, to be stayed. Would this not constitute a misuse of the procedure? But even if it might not in the abstract, might it not here, where an earlier anti-SLAPP motion had been denied, the court expressly holding that plaintiff had met his burden under step two-a holding, not incidentally, made against three defendants who, unlike the Jammu defendants, were not even the publishers of the articles. We would say that this filing alone would be an abuse. And certainly when followed by the abuse coup de grâce-the appeal.
A Losing Defendant’s Right to Appeal Is the Aspect of the Anti-SLAPP Statute Most Subject to Abuse
As originally enacted, section 425.16 made no reference to appeal (though obviously a losing plaintiff whose case was stricken could appeal any judgment of dismissal). In 1999 subsection (j) was added to the statute, providing that “[a]n order granting or denying a special motion to strike shall be appealable under section 904.1.” FN14 (Stats.1999, ch. 960, § 1.)
The legislative history leading to subdivision (i) is not particularly illuminating, as shown by the brief discussion in the Senate Judiciary Report, which reads in its entirety as follows: “1. Stated need for legislation [¶] According to the proponents, this bill would further the purpose of the anti-SLAPP statute by allowing the defendant to immediately appeal a denial of a special motion to strike. Without this ability, a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated. [¶] The proponents contend that when a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal [ sic ], which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP statute is useless and has failed to protect the defendant’s constitutional rights. The proponents assert that since the right of petition and free speech expressly granted by the U.S. Constitution are at issue when these motions are filed, the defendant should have the immediate right to appeal and have the matter reviewed by a higher court. [¶] The author is submitting amendments in Committee to clarify that the right of appeal would apply to motions granted or denied in order to assure that both the plaintiff and defendant are given equal rights to appeal an adverse order.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended May 28, 1999, p. 3.)
The right of a defendant to appeal a losing anti-SLAPP motion quickly became, like so much else of the anti-SLAPP procedure, the subject of criticism. Indeed, such criticism was acknowledged by the Legislature itself in 2003 when, in discussing Senate Bill 515, the Senate Judiciary Committee noted the claim by the proponent of the bill “that current law is being used by defendants to unreasonably delay a case from being heard on the merits, thus adding litigation costs and making it more cumbersome for plaintiffs to pursue legitimate claims…. The filing of the meritless SLAPP motion by the defendant, even if denied by the court, is instantly appealable, which allows the defendant to continue its unlawful practice for up to two years, the time of the appeal.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 515 (2003-2004 Reg. Sess.) as amended May 1, 2003, pp. 11-12.) As enacted, section 425.17 expressly states that if a motion is denied based on that section, “the appeal provisions … of section 425.16 … do not apply.” (§ 425.17, subd. (e).) Unfortunately, section 425.16 was left untouched.
The concern about possible abuse of a losing defendant’s right to appeal caught the attention of the Supreme Court in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958. While holding that the defendant’s appeal stayed all proceedings in the trial court affecting the merits of the case, the court recognized the opportunity for abuse: “In light of our holding today, some anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial. As the Court of Appeal observed and plaintiffs contend, such a result may encourage defendants to ‘misuse the [anti-SLAPP] motions to delay meritorious litigation or for other purely strategic purposes.’ ” ( Id. at p. 195, 25 Cal.Rptr.3d 298, 106 P.3d 958.)
Commenting on this in Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283-284, 35 Cal.Rptr.3d 909 ( Olsen ), Justice Sims observed as follows: “Both the Legislature and the Supreme Court have acknowledged the ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse. As to abuse occasioned by the stay of proceedings on appeal of the denial of an anti-SLAPP motion, the Supreme Court has ‘encouraged’ us ‘to resolve these … appeals as expeditiously as possible. To this end, reviewing courts should dismiss frivolous appeals as soon as practicable and do everything in their power to ” ‘prevent … frustration of the relief granted.’ ” ‘ [Citation.]” (Fns.omitted.) Nothwithstanding our great respect for Justice Sims, such dismissal is easier said than done.
Olsen involved an appeal that claimed that the trial court abused its discretion in denying an anti-SLAPP motion that was clearly untimely, an appeal, Justice Sims rightly concluded, that indisputably had no merit. However, while ultimately dismissing the appeal, Justice Sims first recognized the “general rule” that a motion to dismiss should never be granted if ruling on the motion “requires a consideration of the merits.” ( Olsen, supra, at p. 284, 35 Cal.Rptr.3d 909, citing Reed v. Norman (1957) 48 Cal.2d 338, 342, 309 P.2d 809.) “The general rule is grounded on policies of avoiding double work by this court and avoiding unwarranted advancement of the case on calendar. (See 9 Witkin, Cal. Procedure [ (5th ed. 2010) ] Appeal, §§ [747-748], pp. [811-812].) The Supreme Court’s admonition for dispatch in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958, warrants an exception from the general rule here.” ( Olsen, supra, 134 Cal.App.4th at p. 284, fn. 5, 35 Cal.Rptr.3d 909). From there, Justice Sims went on to grant the motion to dismiss the appeal because it was “frivolous.” ( Olsen, supra, 134 Cal.App.4th at p. 280, 35 Cal.Rptr.3d 909.)
The decision ended with an appeal to the Legislature:
It is now almost five years since plaintiff filed his lawsuit, and trial is not yet in sight. Such delay hardly seems defensible, particularly when it is due in no small part to non-meritorious appeals by defendants who lost anti-SLAPP motions, the first appeal voluntarily dismissed after languishing for a long period (see fn. 2 ante ), and this appeal rejected as utterly without merit. As we said, something is wrong with this picture, and we hope the Legislature will see fit to change it.