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.  Read the rest of this entry »