SLAPP Law Explained

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Understanding California SLAPP Law and Anti-SLAPP Motions

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 law, anti-SLAPP motions, and SLAPP-back claims.

What is a SLAPP lawsuit and an anti-SLAPP motion?

Let’s begin with the basic terminology. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” A SLAPP is a lawsuit, filed for the improper purpose of trying to silence criticism, or to prevent someone from pursuing their own right of redress. 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 was the first state to enact an anti-SLAPP statute, any many other states (and other countries) modeled their anti-SLAPP legislation on California, and rely heavily on California case law in interpreting the statute. Being the first, and given its population, California has more SLAPP litigation than any other state.

Before proceeding any further, let’s be sure you have 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 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 itself 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 these actions by providing a quick and (hopefully) inexpensive defense.  Although called a special motion to strike, the anti-SLAPP statute creates 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 has the discretion to consider anti-SLAPP motions filed beyond the 60-day deadline). If the plaintiff files an amended complaint at any point, that may restart the 60-day clock, depending on how the amended complaint compares to the original complaint. 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 stops any discovery and any discovery motions.  This advances the purpose of the underlying statute, which is intended to save defendants from spurious litigation, 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.)

There are three important anti-SLAPP statutes, but the heart of legislation is contained in subpart (e) of Code of Civil Procedure 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.

Again, the SLAPP is the complaint, and it is only a SLAPP if the claims “arise from” one or more of the categories set forth above. The motive of the plaintiff does not determine whether a case is a SLAPP. We get many callers who say something like, “the plaintiff is only suing me because he wants drive me into bankruptcy in order to shut me up.” Assuming that is true, it doesn’t make the complaint a SLAPP unless the wording of the complaint shows it arises from one of the above categories.

Note also that two of the categories set forth in section 425.16(e) require that the speech be “in connection with a public issue or an issue of public interest.” Case law is constantly evolving on what constitutes a matter of public interest, but generally speaking, a purely private dispute will not fall under the anti-SLAPP statute. Conversely, the first two categories have no public interest requirement. So, for example, a statement made before a legislative, executive or judicial proceeding will always fall under the anti-SLAPP statute, regardless of nature of the proceeding.

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 still move forward with the action if if he can show that he is more likely than not to prevail on the action (this is called making a prima facie showing).

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 logs onto, 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 for making him wait so long, so he erases that, and instead falsely claims that the doctor recommended leaches to treat the patient’s Crohn’s disease. He states 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 lawsuit a SLAPP? If the doctor sues the patient for defamation for what he posted on, 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”? For quite some time, that was an open issue, with the courts looking at various factors, but at this point it is agreed that the performance of a business is usually a matter of public interest, since the public wants to know if they should patronize a particular business or hire a given professional. Thus, what the patient wrote about the doctor would probably satisfy the first prong of the anti-SLAPP analysis.

Second Prong:  Is the Plaintiff Likely to Succeed?

But a case is not over simply because it falls under the anti-SLAPP statute. The court next decides whether the plaintiff, here the doctor, is likely to succeed with the action. An anti-SLAPP motion, if granted, deprives the plaintiff of the opportunity to have the matter decided by a trial, so it can be granted only if, as a matter of law, the plaintiff has failed to state a claim. To satisfy that legal standard, the judge is not permitted to weigh the evidence, and must take the plaintiff’s evidence as true. The plaintiff need only prove that if his evidence is believed, he has established a prima facie case. 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 or otherwise actionable. This is a point often missed by attorneys unfamiliar with anti-SLAPP law.

How Will the Court Decide?

Let’s run our hypothetical facts through the anti-SLAPP analysis. The doctor is suing for defamation. The defendant responds to the complaint with an anti-SLAPP motion, and easily meets the first prong. The law requires that the defendant must support the motion with a declaration, and the defendant attests that the doctor really did say that the patient’s Crohn’s disease should be treated with leaches.

Since the motion satisfies the first prong of the anti-SLAPP analysis, the burden shifts to the doctor to prove that he is more likely than not to prevail. In that regard, the doctor has a pretty easy case. He provides his own declaration, stating that he never advised the patient to treat his condition with leaches, and that the review is therefore false and defamatory. That statement must be taken as true for purposes of the anti-SLAPP analysis, so the doctor has sufficiently stated a case for defamation. The anti-SLAPP motion will be denied. Even if the defendant files five declarations from family members who were all present for the examination, all swearing that the doctor did prescribe leaches, the court cannot weigh the evidence, so the motion would be denied.

But it’s not quite that simple. This is a defamation action, and in a defamation action the statement must be verifiably false. The patient also wrote that the doctor is a quack and should lose his license. Those statements are not verifiably false, because they are statements of opinion. So, even though the doctor filed a declaration stating that he is not a quack, he would lose on that point, if his defamation action is based in part on that statement of opinion. The court would conclude that the statement is nothing by a hyperbolic statement of opinion.  Alternatively, the court could find that “quack” is an attack on the doctor’s professionalism, and is not a matter of opinion since the patient had no basis to reach that conclusion. His only really beef with the doctor had been that he was made to wait, and that would not justify calling the doctor a quack.

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 regularly, 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 to strike 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 $400,000. 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:

  • Defamation
  • Malicious Prosecution or Abuse of Process
  • Nuisance
  • Invasion of Privacy
  • Conspiracy
  • 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.

Aaron Morris, Partner
Morris & Stone, LLP


Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630

(714) 954-0700

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

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