California SLAPP Law

Every week I get callers complaining about the anti-SLAPP statutes and/or the litigation privilege. The scenario is almost always the same. The caller sued someone for defamation for something they said in conjunction with litigation or an investigation by some government agency, and the caller was hit with an anti-SLAPP motion. The caller is outraged that the anti-SLAPP motion is keeping him from getting damages for the allegedly false statements made in court or court documents.

The outrage is misplaced, because the law is working properly by preventing the callers from doing what they are trying to do. The legal system cannot function without a litigation privilege. That privilege provides that anything said in conjunction with litigation is privileged, and cannot form the basis for a defamation action. And since the speech is privileged, a plaintiff can’t make an end run around the statute by just asserting different causes of action. I have written on this topic before, and the prior article shows what the justice system would be like without the litigation privilege.

Today I argued an anti-SLAPP motion in Los Angeles Superior Court, and the facts of the case provide a real life example of why the litigation privilege is so essential.

Let’s call the plaintiff in this case John. John decided one day that his employer was discriminating against him, and filed a complaint with the EEOC on that basis. There was then a dispute with his employer, with the employer saying John had violated a company policy and John denying that claim. The employer fired John for the alleged violation. John argued to the EEOC that the termination for the alleged violation was just more evidence of discrimination.

The EEOC investigated John’s claims of discrimination, and during that investigation interviewed our client, who also worked for the company. We’ll call him Dave.

During the interview by the EEOC investigator, Dave confirmed John’s violation of company policy, and the EEOC concluded that John’s claims of discrimination were unfounded. John was still free to pursue litigation against the company, but he chose another path. He sued Dave, claiming that Dave had lied to the EEOC, and it was because of that lie that John’s EEOC claim was thrown out. According to John, all of his travails — loss of his job, home and family — had been caused by Dave’s statements to EEOC. He sued Dave for slander, libel, negligent infliction of emotional distress and intentional infliction of emotional distress.

Dave had the good sense to come to us, and we responded to the complaint with an anti-SLAPP motion. Although Dave was not a party to the EEOC action, the law is very clear that witnesses are protected as well. As set forth in Code of Civil Procedure § 425.16(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.  (Emphasis added.)

John opposed the motion, making the arguments that this was not a “public issue” and that the law did not apply to his claims that were not based on defamation. We had no problem refuting these arguments. The issue of whether a matter is of “public interest” comes up only in the context of free speech claims. The law is settled that when the speech arose out of a right of redress, then the speech is per se a matter of public interest.

As to the assertion that the claims for intentional and negligent infliction of emotional distress could survive the anti-SLAPP motion, the simple answer it that that can’t be the law because the statute would be meaningless. How can speaking to the EEOC be privileged if the witness could be sued because that speech hurt someone’s feelings?

The judge ruled in our favor on all causes of action, striking the entire complaint.

I understand why the callers are frustrated. In their minds, they had a legitimate claim that was destroyed by the lies told by a witness. The reason that there has to be a remedy when someone lies on the stand.

There is such a remedy, but it is not a civil action. We as a society cannot have a situation where someone who testifies in court can be personally sued. Who would be willing to testify if they could be sued? It doesn’t matter whether or not their testimony was truthful, because the party against whom they were testifying would have the ability to use the threat of a lawsuit to get the witness to change their testimony.

John’s case perfectly illustrates the point. Shortly after I came into the action to represent Dave, I received a call from John. John offered to dismiss the action if Dave would say that he had lied to the EEOC. John was way past the statute of limitations (SOL) to sue his former employer, but if he could get Dave to say that he had lied to the EEOC, he was then going to try to get around the SOL by claiming fraud.

Dave had no dog in this fight between John and his former employer. Without the litigation privilege, Dave might have concluded that the quickest and cheapest way out of the case was to give John the false statement he was seeking. Thus, without the litigation privilege, witnesses could be intimidated into providing false testimony or, at the very least, not providing any testimony at all.

If you are reading this article because you are in the position of the callers I described earlier, instead of railing against the anti-SLAPP statute and litigation privilege, it may be time to look within.

For example, in the case of John, he wanted to be able to sue Dave, claiming that Dave’s allegedly false testimony had killed his EEOC action. But look within John. You presented your testimony and all your evidence to the EEOC, and it found that you did not have a case. It apparently decided that Dave’s testimony was more credible than yours. Why do you believe a second action in a different forum would yield a different result? If the EEOC didn’t believe you, why should you believe that a different judge or jury would come to a different conclusion?

The SLAPP statute protects a witness who provides testimony at “any official proceeding authorized by law,” and that includes a witness at EEOC hearing. Don’t be upset when the law properly protects a witness.