The SLAPP is the Lawsuit

"Back to Basics" handwritten sign

Sometimes I get so far into the weeds of SLAPP law, that I fail to explain the fundamentals. At least once a week a get a call from someone saying they’ve read one or more of my articles, and want to retain me to bring a SLAPP action.

Changing the facts to maintain privacy, today’s caller was thrown out of a movie theater for doing his own Mystery Science Theater 3000. He thought the crowd would be amused by his ongoing commentary about what was occurring on the screen. They weren’t.

He concluded that was an infringement on his right of free speech, and wanted to “bring a SLAPP suit.”

Back to basics.

SLAPP stands for Strategic Lawsuit Against Public Participation. A SLAPP is a legal action filed in order to chill someone’s exercise of public participation, whether that takes the form of speech in a public forum, or by way of litigation, to provide two examples.

So the SLAPP is the lawsuit. An anti-SLAPP motion is a RESPONSE to a lawsuit that is based on speech or conduct that is protected by the anti-SLAPP statute.

But the caller’s confusion is understandable. The anti-SLAPP statute is designed to protect free speech, and he felt the theater’s conduct was interfering with his free speech. There may well be a basis for an action (well, not under these facts, but conceptually), but there is no such thing as a “SLAPP action.”

A frivolous action is not (necessarily) a SLAPP.

And while I have your attention, allow me to clear up related points of confusion. While the anti-SLAPP statute is intended to be a fast way to dispose of a frivolous action, an action is not a SLAPP just because it is frivolous, and it is not a SLAPP just because the secret intention of the plaintiff is to silence you.

Someone wrote to say he wanted to bring an anti-SLAPP motion against an employee who had filed a lawsuit, claiming he was not paid overtime. At the employee’s deposition, he could not identify any day that he worked overtime and was not properly paid for that time. The question to me was basically, “even though the action was filed eight months ago, can I still file an anti-SLAPP motion since we only now have proof that the action is entirely frivolous?”

Nothing in those facts make the overtime claim a SLAPP. The anti-SLAPP statute specifically PROTECTS that employee’s right to sue. If the employer prevails, and can show that the action was brought without probable cause and with malice, he can sue for malicious prosecution, but the action was not a SLAPP, just because it was frivolous.

Motive does not a SLAPP make.

And the motive in bringing an action, standing alone, does not make it a SLAPP. This situation typically arises when there has been some threat of legal action. A commercial tenant fails to pay the rent, and is sued by the landlord for the unpaid rent. The tenant sends an email to the landlord saying, “If you don’t dismiss your complaint, I will make it my life’s work to sue you into oblivion. Your life will be spent in depositions and court until you drop your lawsuit.” True to his word, the tenant files a completely frivolous counterclaim, claiming the landlord breached the lease by failing to protect the tenant’s car from the sun’s rays. The landlord calls me, wanting to bring an anti-SLAPP motion, because it is clear that the cross-complaint was brought in an attempt to get the landlord to drop his action, as evidenced by the tenant’s email.

The stated motive for bringing the action does not make it a SLAPP. The landlord’s logic is that the cross-complaint was really brought to chill the landlord’s ability to sue for the unpaid rent, but that motive does not make it a SLAPP. The determination of whether the cross-complaint is a SLAPP must come from the allegations. If the cross-complaint is based on protected speech, that satisfies the first prong of the anti-SLAPP analysis, and the court will then determine if failure to protect the tenant’s car from the sun’s rays is sufficient to state a claim. Evidence can be presented for that determination. But unless the allegations set forth in the complaint or cross-complaint establish that it is based on protected speech, it is not a SLAPP, no matter how obvious the improper motive for bringing the action.

The limitation cuts both ways.

If you are frustrated by the fact that the determination of whether the complaint is based on protected speech must come from the allegations, even when you have a smoking gun exhibit showing that the complaint was filed for improper purposes, you can perhaps take a little solace in the fact that the plaintiff is similarly limited.

It is commonplace that a plaintiff sues my client, I respond with an anti-SLAPP motion, and then, in a desperate attempt to survive the motion,  the plaintiff files declarations setting forth allegations that are totally new.

For example, a (future) plaintiff buys a house and rents it out for raves, and the people next door are repeatedly having to call the police to complain about the noise. That upsets the plaintiff, because the police sometimes shut down the parties, and he has to refund the money. Making matters worse, Code Enforcement is investigating whether that use is permitted under the zoning.

Hoping to intimidate the neighbors into silence, plaintiff sues them for Nuisance (for calling the police all the time), Interference with Prospective Economic Advantage (because the calls are interfering with his ability to rent the house out), and Intentional Infliction of Emotional Distress (because he is really stressed that he won’t be able to make the mortgage payments).

Naturellement the neighbors hire moi to bring an anti-SLAPP motion, based on the fact that the calls to the police are privileged under the anti-SLAPP statute.

Although the complaint was based entirely on the calls to the police, in opposition to the anti-SLAPP motion, the plaintiff offers his own declaration and those of 20 partygoers who attest that the defendant neighbors also had their cars towed illegally, and out of spite would play polka music really loud to try and ruin the raves. Those activities would not be protected under the anti-SLAPP statute, so the hope is that by alleging this unprotected conduct after the fact, the judge won’t be able to strike the complaint, and the case will still move forward, having the intended effect of intimidating the defendant neighbors into silence.

It doesn’t work that way.

As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655 [the pleadings “frame the issues to be decided”].) Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations. (Baral, 1 Cal.5th at p. 396.) Because the issues to be determined in an anti-SLAPP motion are framed by the pleadings, we will not “insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified …. It is not our role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it. (Medical Marijuana, 6 Cal.App.5th at p. 621.)

So when you receive the 20 declarations attesting to all the evil things you did, fear not. Any new allegations will not be considered.

But won’t the plaintiff just file another complaint, this time with the allegations of illegal towing and polka music? Great question. Thanks for engaging.

Case law is very clear that a complaint cannot be amended once an anti-SLAPP motion is pending. (I discuss in this article one “exception” that everyone points to, but that was based on a specific circumstance that will never arise again in your lifetime.**)  The reasoning is that allowing amendments would defeat the intent of the anti-SLAPP statute to quickly dispose of an action based on protected conduct, since now the defendant would have to bring repeated motions to address serial amended complaints.

The courts have extended that reasoning to complaints that are filed after a successful anti-SLAPP motion. If such were allowed, that would eviscerate the “no amendment” rule; instead of amending, plaintiffs would just file a new action. If the allegations could have been included in the original complaint that was stricken, the court won’t allow a new complaint with those allegations.

Obviously that does not mean the plaintiff can never again sue the defendant, but it has to be based on new allegations. Using our hypothetical, if the defendant did indeed illegally tow cars and play polka music, the failure to make those allegations in the original complaint is in essence a “get out of jail free” card. But if the defendant engages in that behavior again, those acts would be fair game.

** I’m reminded of a scene from The Simpsons. Homer dreams that he is in heaven. He is walking with God, and asks, “God, can you tell me the meaning of life?” God answers, “Oh Homer, I can’t tell you that. You’ll have to wait until you die.” Homer says, “I can’t wait that long!” God responds, “You can’t wait six months?”

Leave a Reply

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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

(714) 954-0700

Email Aaron Morris
Information Helpful?
Buy me coffee
SLAPP Law Podcast

Click "Amazon Music" for all episodes of California SLAPP Law Podcast


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.

Factual summaries are entirely accurate in the sense of establishing the legal scenario, but are changed as necessary to protect the privacy of the clients.