California SLAPP Law

There is currently no federal anti-SLAPP statute, but that does not mean the anti-SLAPP remedy is not available in federal court. In federal diversity cases brought in California, applying California law, a defendant still maintains the right to bring a motion to strike under Civil Procedure section 425.16. But overlaying this statute onto federal procedures has created some issues.

The right to amend.

In California, it is now clear that once an anti-SLAPP motion has been filed, the plaintiff cannot amend the complaint in an attempt to fix the problems that made the complaint a SLAPP.  But in the recent case of Greensprings Baptist Christian Fellowhip Trust v. Cilley, the Ninth Circuit saw things differently.

That case arose from a malicious prosecution action.  The defendant filed an anti-SLAPP motion which was granted by the court, but with leave to amend.  The court ruled that under the very liberal amendment standards of federal court, leave was proper.

As a side note, the decision made little sense, again illustrating that many courts struggle with the hybrid nature of an anti-SLAPP motion. Even though demurrers are not permitted in federal court, that in essence was the standard applied by the District Court.  When a demurrer is sustained because the complaint fails to allege essential elements, leave to amend is normally granted to afford the opportunity to allege the missing elements. In Greensprings, the court determined that plaintiff had failed to meet the second prong of the anti-SLAPP analysis – providing sufficient evidence to show a likelihood of success.  But why grant leave to amend?  If the issue is evidence, then no amount of amending will provide more evidence.

And that takes us to the next difference between state and federal court as regards the treatment of the anti-SLAPP process:

The right to appeal.

California’s anti-SLAPP statute provides for an immediate appeal from a denial, so the defendant did just that; appealing the court’s decision to permit amendment.  But that raised another issue. Federal courts do not like interim appeals, state statute or not.  The Court of Appeals held that as a matter of first impression, the order granting anti-SLAPP motion to strike complaint with leave to amend did not conclusively determine the disputed question of the anti-SLAPP statute’s applicability, and thus the order was not immediately appealable.  “Accordingly, we hold that we lack jurisdiction under the collateral order doctrine to entertain an appeal from the portion of a district court’s order granting a defendant’s anti-SLAPP motion which gives a plaintiff leave to amend her complaint.”

However, the decision was a narrow one limited to the specific circumstances. The Court of Appeal confirmed that California’s right of appeal is available when immediate review is necessary to safeguard the right protected by the state’s statute. Thus, while Greensprings denied the right to appeal, it affirmed that immediate appeal is available under the proper circumstances.