Archive for February 2026
Sweetwater — How to Defeat an anti-SLAPP Motion with Inadmissible Evidence
An anti-SLAPP motion can be viewed as a somewhat one-sided mini-trial, where the plaintiff is required to show sufficient evidence to establish a likelihood of succeeding on their claims. It’s one-sided because the plaintiff’s evidence is “accepted as true,” and the defendant’s evidence is considered only to determine if it establishes an affirmative defense as a matter of law.
But therein lies the rub. The plaintiff must produce sufficient evidence to establish a probability of success, while at the same time being prevented from gathering that evidence due to the discovery stay the motion imposes. Perhaps more frustrating, the plaintiff may have the evidence, but the evidence is inadmissible due to issues that could be easily addressed with a little discovery. For example, a plaintiff was provided with a company email from and anonymous source that clearly defames him, but that email is inadmissible hearsay unless and until he conducts discovery to authenticate it. Should such a case be dismissed pursuant to an anti-SLAPP motion even though the supporting evidence exists, but is not yet admissible?
In the decision of Sweetwater Union High School District v. Gilbane Building Co., the California Supreme Court came up with a brilliant way to address this conundrum. Sweetwater clarifies that the inquiry is not whether the proffered materials are themselves admissible in their present form, but whether the facts asserted are reasonably capable of being admitted at trial. Read the rest of this entry »
Think Hard Before Filing a Malicious Prosecution Action
I of course take great joy in extricating my client from a lawsuit with an anti-SLAPP motion. The client was stressed over being sued, facing over a year of litigation, and the possibility of having to pay a judgment. Then I swoop in and in relatively short order and with relatively modest fees, make all the problems go away. I even get their attorney fees paid by the Plaintiff.
But I also feel a little pain for the plaintiffs, especially when they are representing themselves. If an attorney files a SLAPP on behalf of their client, then shame on the attorney. They should know better. But what does Joe Citizen know about anti-SLAPP law? He feels he was done wrong, sues for redress, and ends up unwittingly filing a SLAPP.
The most fertile ground for these self-inflicted wounds are lawsuits for Malicious Prosecution. Bill sues Joe for something, and Joe ends up paying a lot of money to an attorney to fight the lawsuit. But ultimately Joe wins, so he sues Bill for Malicious Prosecution in order to get back his attorney fees. A perfectly legitimate goal. If he hits a home run, he might even get punitive damages. That’ll teach Bill.
But what Joe does not know is that EVERY action for Malicious Prosecution satisfies the first prong of the anti-SLAPP analysis. The anti-SLAPP statute, Code of Civil Procedure 425.16, subpart (e), protects:
(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.
Joe is suing Bill because Bill sued Joe. He is suing for a written statement (the complaint) made in a judicial proceeding. His Malicious Prosecution action therefore automatically satisfies the first prong of the anti-SLAPP analysis, namely, that it falls under the anti-SLAPP statute.
But we still have the second prong. Even though the first prong is satisfied, Joe can defeat the anti-SLAPP motion if he can present sufficient evidence to show that his Malicious Prosecution action can succeed. Read the rest of this entry »
Posted in Anti-SLAPP motion, Case Results | Tags: Advice of Counsel defense, Interim Adverse Judgment Rule | No Comments »
What is a SLAPPback Action?
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. Read the rest of this entry »