Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions


Like shooting fish in a barrel (although I have never understood why, if the fish are already in a barrel, there would be any need to shoot them).

I (telephonically) attended oral argument on an anti-SLAPP hearing this morning, and it again demonstrated that attorneys are just not thinking through their motions. I was brought in to defend against the motion. In reviewing the motion, I immediately recognized that the attorney for the defendant had made three major mistakes, any one of which would likely guarantee denial of the motion.

Just the facts, ma’am.

This case involves one of those horrible situations where someone stops taking care of their home, and it eventually falls into such disrepair that the government has to step in and mandate repairs, with the threat of selling the home.

The homeowner (the defendant in our case) went along with the process. The homeowner’s insurer actually stepped up and paid for the repairs, and Defendant agreed to all of the planned construction. But in the end, he did not feel that the home had retained its original character, and took to the internet to vent against our client, the contractor who had performed the repairs.

As is so often the case, Defendant was not satisfied to merely tell the true story, explaining why he was unhappy. In these situations, Defendants want to hurt the business they blame for their travails, so they embellish. He made up more and more lies, to the point that he was saying the contractor was never authorized to make repairs, and had “stolen” the insurance proceeds.

Before I was involved, the contractor had sued Defendant for defamation. I was brought in to oppose the anti-SLAPP motion.

Mistake #1 – Failing to follow Baral v. Schnitt.

An anti-SLAPP motion is a “Special” Motion to Strike, but it remains a motion to strike.

Baral v. Schnitt sets forth the process for seeking to strike individual allegations of a complaint. It begins with IDENTIFYING those allegations in the notice of motion. If you fail to identify what you are seeking to strike, then the motion becomes an “all-or-none” proposition. If all you ask for is that the complaint, or individual claims, be stricken under the anti-SLAPP statute, then you will lose if there are sufficient allegations for the claim to survive.

In this case, the argument could be made that some of the allegations should be stricken. For example, the attorney had alleged that it was defamatory for the Defendant to state that the house was a “hovel.” That’s a matter of opinion (although I would have argued that the statement still questioned the professionalism of the contractor, and case law holds that such background statements do not necessarily need to be stricken).

Instead of identifying what he wanted stricken, defense counsel had simply stated that the court could strike individual allegations. It doesn’t work that way. It would violate due process for the court to strike allegations, when I have not even been informed which allegations the Defendant is seeking to strike. Such would not fly on a traditional motion to strike, so it is equally inappropriate on a special motion to strike.

Mistake #2 – Thinking that discussions of investigations are privileged.

I have seen this so many times, and I’m not totally sure it’s a mistake, since some judges appear not to understand the law.

Here’s how it works. If a party is in court, and testifies that the opposing party cheats on their taxes, they are safe from a defamation claim, even if the statement is false. The testimony would clearly be protected by the litigation privilege.

But if that same person goes onto the internet, and says, “hey world, opposing party cheats on their taxes, and I testified about it in court today,” that does not fall under the litigation privilege. To fall under the litigation privilege, the speech must ADVANCE the purposes of the litigation. Admittedly, that can be a broad standard. I’ve seen situations where an out of court statement to a non-party is still found to fall under the litigation privilege, because it is determined that the party could have been a potential witness, and it was therefore necessary to make the statements to that party. But blogging about a lie you told in court will not be protected, even though it was “about” the matter being litigated.

In our case, the defense counsel argued that everything the Defendant wrote on line was protected, because there had been an investigation by the California State Licensing Board, so he was really just discussing that case. That’s not how it works.

Mistake #3 – Failing to recognize that you won’t be able to overcome the Plaintiff’s declaration.

There is no weighing of evidence on an anti-SLAPP motion. The Plaintiff’s evidence must be taken as true, unless it is deficient for some other reason, such as being based on hearsay.

Before spending significant time and money on an anti-SLAPP motion, defense counsel must always first ask, “will Plaintiff be able to present evidence that, if taken as true, would make him the prevailing party?”

Simple example. I represented an oral surgeon. He sued for defamation when the Defendant posted a number of outrageous lies about him. She was obviously unhappy with the work, but she had to embellish. In her online review, she added the claim that my client had pushed a scalpel through her cheek. She knew this was untrue. Indeed, she had posted pictures following the procedure, thinking they showed that she was unnecessarily “puffy.” (An outrage to be sure.) They did not show any puncture wound.

So why did the attorney think he could successfully bring an anti-SLAPP motion under these facts? My client’s declaration truthfully stated that he had not punctured the patient’s cheek during the process. That had to be taken as true, even if Defendant filed a declaration stating that he “really, really, really did pierce my cheek.”

In the contractor case, the Defendant’s postings were basically all about what she perceived to be defective work, and how my client was in cahoots with the insurer. Why would the attorney think the motion would be granted? My client simply truthfully attested to how all the work was done properly, and that he was not in cahoots with the insurer. Motion denied.

The process I follow when I am considering an anti-SLAPP motion is to first determine if any of statements we are defending can be shown to be false with a simple declaration from the Plaintiff. (Which is not to say my client’s statement was false, only that Plaintiff can so claim.) If so, then I only proceed if there are other individual allegations I want to strike, that would not be vulnerable to a declaration, such as statements of opinion or other statements that would be absolutely privilege, despite what the Plaintiff might say.


3 Responses to “Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions”

  • christopher lee rudd:

    Why on earth would you wait until the END of this article to refer to yourself as the “Sultan of SLAPP?” I found the article useful and informative, but that elevated the whole thing to art. I laughed so hard upon reading it that I literally spit my drink out.



    I own a restaurant. I was sued by an employee for discrimination, rest breaks, overtime etc. We have completed discovery and he has admitted in deposition that he has no facts to back up his claims. The problem is we have a trial in late march, is it too late to do an anti slapp motion. They wanted 100,000.00 down to 80 down to 30 and now down to 15.

    • Aaron Morris:

      I don’t see anything in your brief summary that would make the action by the employee a SLAPP. An action isn’t a SLAPP just because it is frivolous. Indeed, the anti-SLAPP statute was created in order to protect one’s “right of redress.” He is claiming (perhaps knowing it not to be true) that you did not provide rest breaks, did not pay overtime, etc. He has a right to bring that action.

      That does not mean that one is free to bring a frivolous action. If you prevail in the action, you can then sue for malicious prosecution, based on the fact that he had no probable cause to bring the action if he had no facts to support his claims. Under the litigation privilege, the ONLY action you can bring based on a prior lawsuit is a malicious prosecution. But proceed with caution. A malicious prosecution action automatically satisfies the first prong of the anti-SLAPP analysis, since by definition you are suing someone for exercising their right of redress. The burden will be on you to show that the action was brought without probable cause and with malice. Those can be tough standards to meet.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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