California SLAPP Law

As I explained in this earlier article, on December 27, 2023 (a slightly delayed Christmas present) the Court of Appeal issued an opinion in one of my cases that adopted my “all-or-nothing” reasoning as regards anti-SLAPP motions. You can go to the article for greater detail, but here is the concept in a nutshell.

The California Supreme Court case of Baral v. Schnitt held that an anti-SLAPP motion can be used to strike individual allegations of protected speech. Some courts had previously used a “gravamen” approach, whereby they would try to define the gravamen of a claim, to determine whether an entire cause of action could be stricken based on allegations of protected speech. If the gravamen of the claim was based on the protected speech, the entire cause of action could be stricken, even if it was a mixed cause of action. Baral held that a court does not need to think only in terms of the entire cause of action, but instead could strike individual allegations, and still allow the claim to go forward if allegations of unprotected conduct were sufficient to support the claim.

But it always takes some time for attorneys to “get the memo,” so even after Baral, attorneys continued to ask only that entire causes of action or the entire complaint be stricken, and would not specify individual allegations they wanted to be stricken. That practice continues to this day, even though Baral is now nine years old. (Nine years! I guess I should stop referring to it as “the recent decision of Baral v. Schnitt” in my briefs.)

Nonetheless, despite the lack of any request to do so, and with no notice to opposing counsel, courts would sometimes take it upon themselves to pick out the allegations of protected speech, and order them stricken. That would make defendant the prevailing party, entitling them to attorney fees.

I have for quite some time argued that is unfair and a violation of due process. A court is not supposed to grant relief that was not requested. Like any other motion, with an anti-SLAPP motion, the moving party files the motion, the plaintiff gets one chance to respond, and the moving party then gets to file a reply. What would always happen is the moving party would seek to strike the entire complaint, they would receive my persuasive opposition, and they would back peddle and state in their reply that “even if the court does not strike the complaint as requested, is should strike paragraphs 7, 23, and 47 of the complaint.”

How is that fair? I never had the opportunity to address whether those allegations should be stricken. Now, as a practical matter, I probably did address those allegations in opposing the anti-SLAPP motion, but my response would have been more focused on those specific allegations if a request to strike them was pending.

I always argued that if the defendant asked only that the entire complaint be stricken, then that is the only determination the court can make. I referred to this as an “all or nothing” motion. Even if the court should determine that the complaint is based in part on protected speech, it cannot grant the motion if there are sufficient allegations of unprotected speech to support the claims.

But the courts never had to address my all or nothing argument, because they would deny the opposition’s motion without going into that analysis.

And then came the decision of Paglia v. Hamilton, where the Court of Appeal finally embraced my all or nothing analysis. True to form, after I filed a bullet proof defamation action, defendant nonetheless filed an anti-SLAPP motion, making crazy arguments that the statements were protected, and seeking to strike the entire complaint. Upon receiving my opposition, the defendant replied with, “Well . . . hee hee . . . you know Court, when I asked you to strike the entire complaint, what I really meant was that you should strike the individual allegations of protected speech.” The trial court refused to do so, and the defendant appealed, and made the same argument that individual allegations should be stricken, even though the notice of motion made no such request. The Court of Appeal held that it would be improper to do so. And it was a published opinion! I now had authority to support my all or nothing argument. 

The law is way too much fun.

Sometimes, knowing the reaction it will engender, I cite articles I have written as authority for an argument in one of my briefs. An article is not precedential authority for a legal argument, but anything can be cited as persuasive authority. For example, appellate decisions will sometimes cite to law review articles. The assumption is that the author researched that particular legal issue in depth in order to write the article, and the conclusions are probably sound. My articles don’t have the in-depth analysis of a law review article, but the reasoning is the same.

The entertainment factor of citing to one of my own articles comes from the opposition so vehemently decrying the fact that I would cite my own article, that they never address the argument for which it is cited.

This was even more fun than that, because I got to cite my own case, which is more than just persuasive; the court is required to follow it.

It was a terrible situation.

We’ll call the client Jane. Let’s make Jane a real estate agent, who assisted with the sale of a home in the Whispering Pines neighborhood. The buyer was happy as a clam with the home she bought, but the same model sold for $100,000 less a few weeks later. “Buyer” felt she had been cheated, and asked the seller to adjust the price. The seller refused. Since the seller had moved out of state, Buyer directed her vitriol toward Jane. Buyer got some friends to join her in picketing in front of Jane’s office. When that didn’t work, they began vandalizing her car and office. They would drive around the Whispering Pines neighborhood, and steal her “for sale” signs. If she held an open house, they would show up and threaten her.

Worried about her safety, and on the advice of the police, Jane sought a restraining order against Buyer. She did not retain an attorney, but just filled out the forms and submitted them to the court. The forms asked what Buyer was doing to harass her, so she listed everything she found harassing, including the picketing, the vandalism, the theft of her signs, and the threats.

She thought she would just show up at court on the appointed day, and tell her story. Instead, she was met with an anti-SLAPP motion.

You see, picketing is a protected activity. She had based her request for a restraining order in part on protected speech. The attorney representing Buyer spotted that allegation of protected speech, and saw it as an opportunity to defeat the restraining order request. Still living in the pre-Baral days, he claimed her allegation about the picketing was the “gravamen” of the request, and therefore argued that the entire request should be stricken. He was also seeking $60,000 in attorney fees.

Jane had never heard of an anti-SLAPP motion, and could not believe that she was facing $60,000 in fees just for asking for some protection from all the harassment, threats and vandalism she had been suffering. Thankfully she found her way to me, not just because I am the Sultan of SLAPP, but because I was fresh off my victory at the Court of Appeal.

Counsel’s mistake.

Counsel for Buyer had made the mistake outlined above. He had sought to strike the entire request, even though only the picketing was protected. Certainly the thefts, vandalism, and threats were not.

I cited to my newly-minted, all or nothing decision from the Court of Appeal, and argued that even though Buyer’s attorney had successfully identified an allegation of protected speech, and even though the restraining order request was nominally based on that protected speech, he had not requested that the individual allegation be stricken. He had filed an “all or nothing” anti-SLAPP motion, and had to live with an all or nothing result. The court could not strike the entire request, since it was also based on unprotected conduct, so it could not grant his motion.

The court followed the precedent created by my prior case, and DENIED the anti-SLAPP motion, and hence awarded no anti-SLAPP fees.

A terrible precedent.

Allowing anti-SLAPP motions in the context of a restraining order request is a terrible idea, as this case illustrates. It is designed to be a check-the-box process for laypeople, that does not require the assistance of an attorney. What layperson is going to know that certain types of speech are protected, and that alleging protected speech can expose them to tens of thousands of dollars in attorney fees?

And allowing anti-SLAPP motions in this context serves no purpose. To obtain a restraining order, the applicant must prove a “course of conduct,” as opposed to a single incident. Code of Civil Procedure 527.6 specifically provides that “Constitutionally protected activity is not included within the meaning of ‘course of conduct.’”

So, under our fact pattern, even if Buyer’s counsel had successfully moved to strike the allegation about picketing, it would have accomplished nothing, since that would not have been considered in determining whether a restraining order should be granted.

But that is an issue for another day. On this occasion, I was happy to have an Ace up my sleeve to extricate Jane from this situation, in the form of a Court of Appeal decision.