California SLAPP Law

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 litigatio, 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 »