California SLAPP Law

I am often asked to pursue SLAPPback actions, and find that the requests usually arise from a misunderstanding of the basis for such an action. I will explain here the basics of a SLAPPback action and why, at least in my practice, the circumstances that would justify a SLAPPback seldom arise.

What is a SLAPPback Action?

SLAPPback actions are created and governed by Code of Civil Procedure section 425.18. Section 425.18(b)(1) defines SLAPPback:

“SLAPPback” means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.

That simple definition should clear up much of the confusion. A SLAPPback is simply a malicious prosecution action brought by a defendant who successfully brought an anti-SLAPP motion that resulted in a dismissal of the original action. It could also take the form of an abuse of process action, but that will seldom be the case, as I will explain below.

Note also that a SLAPPback is an entirely new lawsuit. The defendant, having successfully extracted himself from legal proceedings by way of a successful anti-SLAPP motion, jumps right back in by filing a malicious prosecution action. I sometimes get requests to bring a “SLAPPback motion,” but as you can see there is no such beast.

Why are SLAPPback actions so rare?

Conceptually, every successful anti-SLAPP motion could be followed by a SLAPPback action. By definition, if an action is dismissed on the basis of an anti-SLAPP motion, then it had no merit. To survive an anti-SLAPP motion the plaintiff need only show that his claim has “minimal merit.” If it could not even meet that standard, then it almost certainly was brought without probable cause; one of the necessary elements of a malicious prosecution action. 

But what are the damages?

The reason SLAPPback actions are so rare, in my experience, is the lack of viable damages. Again, a SLAPPback is simply a malicious prosecution action, and the damages recoverable for malicious prosecution are explained by the California Supreme Court in Bertero v. Nat’l Gen. Corp., 13 Cal. 3d 43 (citing all the way back to 1884!):

The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings. In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney’s fees (Stevens v. Chisholm (1919) 179 Cal. 557, 564; Eastin v. Bank of Stockton (1884) 66 Cal. 123, 125-126), compensation for injury to his reputation or impairment of his social and business standing in the community (Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18; Lerner v. Glickfeld (1960) 187 Cal.App.2d 514, 526), and for mental or emotional distress (Singleton v. Perry (1955) 45 Cal.2d 489, 495). … Civil Code section 3294 sanctions the recovery of exemplary damages in noncontract cases ‘. . . where the defendant has been guilty of . . . malice, express or implied’. This has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. (Wolfsen v. Hathaway (1948) 32 Cal.2d 632, 647.) The malice in fact, may be proved under section 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences).

To summarize, a malicious prosecution plaintiff can recover damages for: (1) the attorney fees incurred in defending the original action; (2) injury to reputation; (3) mental and emotional distress; and (4) punitive damages.

So let’s go through those four types of recoverable damages, and see if a SLAPPback makes economic sense.

Attorney fees

If the defendant’s anti-SLAPP motion was brought as the first responsive pleading, then he will already have recovered all of his attorney fees pursuant to that motion. If the court reduced those fees for some reason, a SLAPPback does not provide a second chance to recover them. The reasonable attorney fees recoverable for the anti-SLAPP motion has already been determined.

It is often the case that there will be some fees that are not recovered pursuant to the anti-SLAPP motion, since the anti-SLAPP statute limits the fees to those directly related to the anti-SLAPP motion. For example, the defendant might have prepared and filed an answer to the complaint, before filing the anti-SLAPP motion. Or perhaps the attorney had to attend a case management conference. But in my experience, the fees that cannot be recovered by way of the anti-SLAPP motion are nominal, and do not justify the time and expense of a new action.

Injury to reputation

Although Bertero lists injury to reputation as a recoverable damage, and other cases do as well, there is almost no case authority on exactly what that means and how it would be calculated. The most cited case, Sagonowsky v. More (1998) 64 Cal.App.4th 122, states only that such damages are recoverable “because groundless allegations made in pleadings are public records.”

But statements made in court documents are absolutely privileged. If a malicious prosecution plaintiff sues for what was stated in the court documents, claiming that caused injury to his reputation, that would be subject to an anti-SLAPP motion. From the paucity of legal authority on this point, it appears that damages for injury to reputation is simply an extension of emotional distress damages. In other words, a malicious prosecution plaintiff can’t seek damages because the complaint alleges that he is “a stuck-up, half-witted, scruffy-looking nerf herder,” but he can seek damages generally because he knows that groundless allegations were made against him in pleadings that are public records.

Emotional distress

In my estimation, this is the only “real” damage that can be sought by a SLAPPback. No one wants to be sued, and the process can be extremely stressful. So in a traditional malicious prosecution action, as opposed to a SLAPPback, the defendant may well indeed have suffered emotional distress. The case may have gone on for years, with the defendant having to endure responding to discovery, sitting through depositions, and being grilled on the witness stand, all the while fearful that the jury might award significant damages.

But how much emotional distress does a defendant suffer when the case is disposed of with a single motion, often within 30 days of the complaint being served?

Here is the exercise I employ when one of my clients wants to bring a SLAPPback after we prevail on the anti-SLAPP motion:

OK. You recovered all of your attorney fees, but you can recover for emotional distress. Did you suffer emotional distress as a result of being sued?

Hell yes! I could not believe I was being sued for posting an honest review on Yelp.

All right. So picture you are on the witness stand. You’ve just testified that you were really, really, really upset that you were sued. You couldn’t sleep at night, worrying about the lawsuit. Now comes the cross-examination.

Ms. Jones, you testified that you were really, really, really upset that my client sued you for what you posted on Yelp. Did you seek help from a mental health professional?

No.

Did you miss any work?

No.

Did you suffer any physical manifestations of the emotional distress?

I had trouble sleeping.

How long after you were served with the complaint, did you hire Mr. Morris?

It took about two weeks.

And I don’t want you to tell me about your conversations, because that is privileged, but at some point you learned about anti-SLAPP motions, correct?

Yes.

And how long was it, after you hired Mr. Morris, that you brought the anti-SLAPP motion?

He filed it the following week.

Did you understand that the anti-SLAPP motion sought to strike the complaint?

Yes.

And was the complaint stricken?

Yes.

And when did that occur?

About 30 days after I hired Mr. Morris.

So you received the complaint, hired Mr. Morris two weeks later, it is decided to bring a motion that will result in the complaint being stricken if successful, he brings the motion a week after that, and the motion was granted about 30 days later, correct?

Yes.

So you knew after just two weeks that there was a motion that could dispose of the complaint, and that result was achieve about five weeks later, correct?

Yes.

And you want these jurors to award money to you for emotional distress, for the approximately two, or perhaps as much as seven weeks, you worried about this complaint, correct?

Well, yes. I was really, really, really upset.

Be aware that any emotional distress claim opens the door for intrusive discovery. After all, you are seeking money from the defendant for the way he, she, or it made you feel, so it is fair and appropriate that defendant be able to explore whether there may have been other stressors in your life that contributed to your stress.

Punitive damages

Punitive damages are indeed recoverable in a malicious prosecution action. Such damages are designed to punish defendants for their bad conduct, to deter them and others from engaging in such activity in the future.

But punitive damages are not unmoored from reality. The law requires them to be proportionate to the damages suffered. There is no hard and fast measure of what punitive damages can be in proportion to the compensatory damages, but one naturally dictates the other.

If the jury awards only a small amount for the attorney fees and emotional distress damages, that indicates that they don’t think what the defendant did was particularly evil. Those same jurors are not then going to turn around and award significant punitive damages in order to discourage that behavior in the future. They just did not see the behavior as a big deal.

Conversely, if the jurors were offended enough that they awarded $500,000 in compensatory damages, that does not mean that punitive damages will follow. Punitive damages are judged by a different standard. The jury must find by “clear and convincing” evidence that the defendant acted with “malice, oppression, or fraud.”

Just because an action was dismissed by way of an anti-SLAPP motion, that does not mean that the plaintiff acted with malice. The litigation privilege provides a perfect example. Self-represented plaintiffs sue for defamation for things said in court, not realizing that statements in court are absolutely privileged. Such a complaint it properly stricken, but should punitive damages be awarded against a party who did not know the law? The plaintiff was just ignorant, not malicious (although malice can sometimes be shown by a defendant’s flagrant failure to check the facts).

My own policy (other attorneys may differ) is that I don’t consider the potential punitive damages when determining the viability of a case. If the actual and assumed damages are insufficient to warrant moving forward, then punitive damages likely won’t be significant, if awarded at all.

Jurors are unlikely to understand or appreciate the nuances of defamation law and an anti-SLAPP motion.

To make a SLAPPback worth pursuing, you must get the jurors so emotionally invested and worked up that they want to award you damages. That is a challenging task in the context of trying to explain the nuances of protected speech.

Let’s again use the example of a Yelp review. The defendant posted a negative review of a business, and the plaintiff business owner was so upset by the review that he sued for defamation. But the court ultimately decided that the review was a matter of opinion, and granted the defendant’s anti-SLAPP motion on that basis.

The defendant then becomes the plaintiff, and sues the business for malicious prosecution, claiming he was upset about being sued for his Yelp review. He provides his heartfelt testimony to the jury, explaining how he just wanted to tell his tale of a bad experience with this contractor, who painted his living room with Benjamin Moore Alabaster, when he CLEARLY asked for Benjamin Moore Swiss Coffee. No one should ever suffer that horrific fate. He was just trying to protect the public.

For his part, the defendant contractor testifies that he has been a contractor for 23 years, and has never had a single complaint. The customer had never asked for Alabaster paint, and in fact had gone on and on about how good the paint looked when the job was done. He only made up this story about the wrong paint color to avoid paying the final invoice, and threatened to post a negative Yelp review if the contractor didn’t agree to waive the final payment. He doesn’t understand why the customer would do this, and why the judge decided that the lies were protected. He even cries a little in front of the jury.

You tell me who wins.

It’s even tougher in the context of a absolute privilege. My very first anti-SLAPP motion ever involved a defendant who had called a city council member “corrupt” during  a council meeting. The councilmember took umbrage with the remark, and sued for defamation. But pursuant to Civil Code section 47 and the anti-SLAPP statute, statements made during a city council meeting are absolutely privileged. There was no evidence the councilmember could present that would overcome that absolute privilege, so my anti-SLAPP motion had to be granted.

But imagine if I had followed up with a SLAPPback. The jurors would all be sitting there thinking, “You want me to believe that you can say whatever you want about a councilmember, and they just have to take it? That doesn’t seem fair.” The judge would of course explain the law, but there is no guarantee that the jurors would understand.

Why can’t a SLAPPback be based on Abuse of Process?

As set forth at the beginning of this article, a SLAPPback can be based on Abuse of Process, but such a claim almost always fails. When I am asked to review a complaint containing a claim for Abuse of Process, I get all warm inside, because that always makes the complaint a SLAPP, at least as to that claim. The reason is that the “process” used by the plaintiff in the underlying action, no matter how knowingly false and evil, will not amount to abuse of process if the process was used for its intended purpose. An abuse of process claim will almost always be barred by the litigation privilege.

The case of Rusheen v. Cohen, 37 Cal. 4th 1048, illustrates the point. In that case, it was alleged that Cohen and his attorney had filed declarations, falsely attesting to service of the complaint, in order to take a default judgment against Rusheen. Using the fraudulently obtained default judgment, Cohen then obtained a writ of execution in order to seize Rusheen’s property. Rusheen sued for Abuse of Process, and Cohen responded with an anti-SLAPP motion, which was granted by the trial court, and upheld by the California Supreme Court. The court held that even if everything Rusheen alleged was true, the acts still arose from litigation and were therefore absolutely privileged under the litigation privilege.

If the alleged egregious facts of Rusheen v. Cohen would not support a claim for Abuse of Process, you’ll be hard pressed to find facts that would. But Abuse of Process claims cannot be pronounced dead just yet. The case of Brown v. Kennard, 94 Cal.App.4th 40 catalogs a few decisions where Abuse of Process claims survived the litigation privilege. Compare them to your facts to see if your case might support such a claim.

Conclusion

Do not take from any of this that a SLAPPback is never viable. Not every anti-SLAPP motion is decided in seven weeks. If there were significant attorney fees unrelated to the anti-SLAPP motion that you want to recover, or some special circumstance that would support the award of emotional distress damages, then go for it. Just make a reasonable assessment.