Thinking of Filing a SLAPP Lawsuit....You may want to reconsider!

Practitioners, Beware! California’s Anti-SLAPP Motions Can Happen to You: A Practical Overview

BY DANNIELLE CAMPBELL, HOUMAN CHITSAZ AND CONSTANCE YU

DANNIELLE CAMPBELL, HOUMAN CHITSAZ AND CONSTANCE YU

California’s anti-SLAPP statute can be one of the most powerful tools in any litigator’s tool box. Whether you practice in landlord tenant law, family law, business litigation or general civil litigation, claims that arise out of a defendant’s protected free-speech or right-to-petition activity under the statute expose the claims to an anti-SLAPP special motion to strike. While California’s anti-SLAPP statute is not new, case law construing its breadth and application is everchanging. This article highlights important aspects of California’s anti-SLAPP statute, how the law is trending in our state and federal courts, and how some Ninth Circuit decisions foreshadow that its application in federal courts is increasingly untenable and likely to be pulled back.

Background

SLAPP suits, or “Strategic Lawsuits Against Public Participation,” are civil complaints or counterclaims in which the alleged injury is the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution or California Constitution. To protect petitioning and free speech, many states have enacted legislation, or “anti-SLAPP” statutes, allowing special motions to strike to be raised early in litigation. A successful “anti-SLAPP” motion can eliminate or limit entire causes of action that arise from a defendant’s protected activity at the very outset of the case. Moreover, the California version is very broad — sweeping in speech which is of “public interest” regardless of whether or not it takes place in a traditional petitioning or public forum. For this reason, application of California’s anti-SLAPP statute has been controversial. Indeed, within the last four years, courts in Minnesota and Washington have suggested that, in the context of anti-SLAPP litigation, early adjudication of a defendant’s affirmative defense of privileged speech is unconstitutional.

California’s anti-SLAPP statute was enacted in 1992 and codified in Code of Civil Procedure section 425.16. Over the years, the statute has undergone a few legislative amendments concerning the award of attorney fees, the scope of what constitutes matters of “public interest,” the parties’ appellate rights to challenge the trial court’s ruling, and the jurisdictional 30-day period in which to schedule the hearing on anti-SLAPP motions. In 2003, finding ‘disturbing abuse’ of the anti-SLAPP statute, the California Legislature exempted certain actions from it. (Code Civ. Proc., § 425.17. All further citations are to the Code of Civil Procedure unless otherwise noted.) Those exemptions include actions brought solely on behalf of the general public; commercial speech; and include special protections for ideas/expressions in gathering, receiving or processing information for communication with the public, speech made by non-profits organizations subsidized 50% or more by the government, or speech associated with dramatic, literary, musical, political, or artistic work or news publications. (§ 425.17, subds. (a)-(d).)

Procedure

To win an anti-SLAPP motion: “[F]irst, the defendant must make a prima facie showing that the plaintiff’s ‘cause of action . . . aris[es] from’ an act by the defendant ‘in furtherance of the [defendant’s] right of petition or free speech . . . in connection with a public issue.’” (§ 425.16, subd. (b)(1); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.) This includes statements made before or in connection with a legislative, executive, judicial or other official proceeding; or statements made in a public forum or in furtherance of the exercise of free speech. (§ 425.16, subd. (e).) Defendant’s requirement is satisfied if the suit “potentially impairs the right of free speech.” (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950; see also, Baral v. Schnitt (2016) 1 Cal.5th 376; Park v. Board of Trustees (2017) 2 Cal.5th 1057, where factual allegations include both protected and unprotected conduct, the court’s inquiry focuses on whether or which act is subject to the anti-SLAPP motion.)

Second, if defendant meets this threshold showing, the cause of action shall be stricken unless plaintiff can establish ‘a probability that the plaintiff will prevail on the claim.’ (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 (Simpson) (internal citations omitted).) The burden shifts to plaintiff to bring forward admissible evidence establishing a probability of success on the merits.

Application and Evidentiary Issues

California’s “Special” Motion to Strike under its anti-SLAPP statute has some unique evidentiary features. To meet its burden, plaintiff cannot rely on allegations in the complaint, but must set forth evidence that would be admissible at trial. However, unlike in a summary judgment motion, Plaintiff’s burden in the second step of the anti-SLAPP analysis is to demonstrate a probability of prevailing on its challenged causes of action, not simply to show a triable issue of fact or law. Unlike later dispositive motions, plaintiff may have little or no opportunity to conduct discovery to gather such evidence and therefore must rely on its own evidence and declarations to defeat the special motion to strike.

Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff’s burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. Only a cause of action that lacks ‘even minimal merit’ constitutes a SLAPP.

(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)Because defendant’s filing of a special motion to strike immediately stays discovery, plaintiffs frequently have difficulty in producing admissible evidence without seeking at least limited discovery to meet their burden. (§ 425.16, subd. (g).) Thus, Plaintiffs may also face the cost of requesting and conducting discovery in order to adjudicate the special motion to strike.

Request for Discovery

Rulings on anti-SLAPP motions are immediately appealable (see §§ 425.16, subd. (i), 904.1, subd. (a)(13)); hence, trial (and appellate) courts are forced to adjudicate the “merits” of a case in evaluating the second-prong (plaintiff’s probability of prevailing) before the facts can be fully developed in the trial courts. The result is an uneasiness about whether potentially meritorious cases are being summarily dismissed without sufficient due process. As Justice Werdeger has observed, appellate courts, in numerous published decisions, are making substantive law on an incomplete or underdeveloped record. (See Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121, 149 (dis. opn. of Werdegar, J.) “For an appellate court to adjudicate an important First Amendment case on such a sketchy record is unfortunate.”)

Code of Civil Procedure section 425.16(g) provides that courts, “on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding” the discovery stay provisions of the anti-SLAPP law. This exception exists to allow discovery necessary to defeat an unmeritorious anti-SLAPP motion.

To obtain discovery under section 425.16(g), the plaintiff must demonstrate that the party from whom discovery is sought possesses evidence needed by plaintiff to establish a prima facie case, along with some explanation of what additional facts the requesting party expects to uncover. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.)

Early Determinations in Hybrid Cases in which Factual Allegations include both Protected and Unprotected Speech/Conduct.

In 2016, the California Supreme Court’s opinion in Baral v. Schnitt changed the then-established jurisprudence in determining whether a special motion to strike applies to a “mixed” cause of action — that is, a cause of action that is predicated on facts that would constitute protected activity and unprotected conduct — which at the time was determined by the “gravamen” or the “principal thrust” of the claim. (Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral).) Since Baral, over 200 appellate and federal district court cases have cited the Supreme Court’s decision.

After Baral, when deciding whether claims based on protected activity arise out of protected activity we do not look for an overall or gestalt ‘principal thrust’ or ‘gravamen’ of the complaint or even a cause of action as pleaded. Indeed, the Baral court did not use the terms ‘principal thrust’ or ‘gravamen’ as a way to describe whether claims are subject to being struck under the anti-SLAPP statute. Employing terms frequently used by Courts of Appeal in anti-SLAPP cases, our high court in Baral indicated that the proper approach is to determine whether an allegation or claim of protected activity is ‘merely incidental’ or ‘collateral’ to a cause of action. [Citation omitted] Claims that are merely incidental or collateral are not subject to section 425.16.

(Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1168-71.)A year later, in Park v. Board of Trustees (2017) 2 Cal.5th 1057, the Supreme Court again clarified that a special motion to strike does not arise where the protected activity is incidentally involved, rather the claim may be struck if the petitioning activity itself is the wrong complained of. In hybrid cases where statements are made in an official proceeding, or raise a public issue or concern that relates to or leads to challenged conduct, the issues of free speech and alleged unlawful conduct are interwoven and so are issues with the application of the SLAPP. “A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, 2 Cal.5th at 1060; see also, § 425.16, subd. (a).)

The problems are further compounded if the complained of speech or conduct is in the context of a commercial transaction, as commercial transactions are exempted from the anti-SLAPP statute. (§ 425.17, subd. (a); Simpson, 49 Cal.4th at 30; see also L.A. Taxi Coop., Inc. v. Indep. Taxi Owners Ass'n of Los Angeles (2015) 239 Cal.App.4th 918, 930.) “Under the two-pronged test of section 425.16, whether a section 425.17 exemption applies is a first prong determination.” (JAMS, Inc. v. Superior Court (2016) 1 Cal.App.5th 984, 993.) If a plaintiff demonstrates that its claims fall within the commercial speech exception, the anti-SLAPP analysis ends—plaintiffs are not required thereafter to demonstrate a probability of success on the merits. (See Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 305 fn.8.)

Split of Authority in Federal Circuit Courts

Presently, three federal circuits—the First, Fifth and Ninth—apply state anti-SLAPP laws and procedure to federal courts in their circuits. Three federal circuits—the DC, Tenth and Eleventh Circuits—do not permit state anti-SLAPP laws to apply to federal courts in their circuits. In early December 2018, the U.S. Supreme Court denied certiorari in an appeal from a case in the Tenth Circuit holding that state anti-SLAPP law does not apply in federal court under an Erie analysis. (AmeriCulture Inc. et al. v. Los Lobos Renewable Power LLC et al., No. 18 89.)

As described more fully below, the Ninth Circuit is grappling with California’s anti-SLAPP statute and its application under the Federal Rules of Civil Procedure (FRCP).

Ninth Circuit Standards for Applying Anti-SLAPP Procedure in Federal Court

The application of California’s Anti-SLAPP statute in federal courts is becoming murkier and more limited with each coming new appellate opinion. The Ninth Circuit’s efforts to circumscribe California’s anti-SLAPP statute within the FRCP appears increasingly strained as recent opinions have further limited the scope of the statute in federal courts. Moreover, some justices on the Ninth Circuit have recently voiced their outright opposition to the application of California’s anti-SLAPP statute in California’s federal courts.

The Ninth Circuit has long applied California’s anti-SLAPP statute in motions to strike a claim in cases filed in federal court on diversity jurisdiction. In doing so, federal courts are ostensibly applying a state’s procedural rules in federal court on the theory that the procedures set forth by the statute are not in conflict with the FRCP. However, the tide is turning from the Ninth Circuit’s earlier decisions that allowed a much wider application of the statute.

In United States ex rel Newsham v. Lockheed Missiles & Space, the Ninth Circuit upheld the application of California’s anti-SLAPP statute in federal courts, after determining that no conflict existed between the statute and the FRCP. (United States ex rel Newsham v. Lockheed Missiles & Space (9th Cir. 1999) 190 F.3d 963, 973.) Although the Newsham Court seemingly permitted wide application of California’s anti-SLAPP statute in federal court, Ninth Circuit opinions now limit the statute’s application and have started a dialogue as to whether the statute belongs in Federal Court at all.

In Makaeff v. Trump University, LLC, the Ninth Circuit overturned a trial court’s denial of plaintiff’s motion to strike, reversing and remanding the case. (Makaeff v. Trump University, LLC (9th Cir. 2013) 715 F.3d 254 (Makaeff).) However, in doing so, the Ninth Circuit court published what many insiders consider an influential concurring opinion by then Chief Judge Alex Kozinski, with Judge Richard Paez joining, that cast doubt as to the future viability of California’s anti-SLAPP statute in the Ninth Circuit. Judge Kozinski flatly concluded that “Newsham is wrong and should be reconsidered.” (Makaeff, supra, 715 F.3d 254, 272.)

In reaching this conclusion, Judge Kozinski first noted the interplay between the use of a state’s substantive and procedural rules in federal court, explaining that in diversity jurisdiction cases, federal courts can apply state’s substantive law, but always apply the federal court’s procedural rules. Moreover, even by applying the state’s substantive right, if a procedural conflict arises, then federal law and precedent is clear, the FRCP govern. This is true even if the application of such procedural rules affects the outcome, and thus are substantive when applied.

With the general rules in mind, Judge Kozinski criticized specific aspects of the Newsham opinion, taking exception to both Newsham’s determination that California’s anti-SLAPP statute confers substantive rights to litigants and that it does not conflict with the FRCP. He strongly rebuffed application of the anti-SLAPP statute, stating bluntly: “Newsham was a big mistake” because the California anti-SLAPP statute “cuts an ugly gash through the orderly process” of federal courts. (Makaeff, supra, 715 F.3d 254, 274.) Judge Paez’s separate concurrence added to the debate, by pointing to the state-by-state variations in anti-SLAPP legislation, all with different standards, which raises concerns of forum shopping by litigants.

Most recently, in 2018, the Ninth Circuit once again took on California’s anti-SLAPP statute in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, further limiting the application of the statute. (Planned Parenthood Federation of America, Inc. v. Center for Medical Progress (9th Cir. 2018) 890 F.3d 828, amended (9th Cir. 2018) 897 F.3d 1224 (Planned Parenthood).) Seemingly following Judge Kozinski’s advice, the Planned Parenthood court determined two distinct routes for a federal court to review an anti-SLAPP motion. First, if the motion is based purely on legal sufficiency, then the motion can be resolved by an FRCP 12(b)(6) motion. Second, the court also held that if the motion is based on factual sufficiency of plaintiff’s claim(s), then the court should use Rule 56 to review the motion and discovery shall be allowed, with opportunities to supplement evidence based on factual challenges, before any decision is made by the court.

So the question is: What features of California’s anti-SLAPP statute remain in federal court and for how long? After the Planned Parenthood case, the answer is hazy, but what is clear is that the application of the statute will apply much differently in state court than federal court, where FRCP rules 12(b) and 56 standards are used to review the motion.

Concluding Thoughts

An anti-SLAPP motion to dismiss or limit the scope of a case at its onset can serve as a powerful tool for defendants in cases where plaintiff’s action arises from an alleged act by defendant(s) that is in furtherance of defendant’s right of petition or free speech in connection with a public issue. Anti-SLAPP motions have been successfully used in unfair competition or defamation suits, and if successful not only result in dismissal of an entire lawsuit (or substantially limiting the claims) but also entitle successful defendants to attorney fees. The filing of the special motion to strike immediately stays discovery and any discovery motions. Hence, even if not successful, an anti-SLAPP motion can frustrate a plaintiff’s case, especially in California state courts, adding cost in terms of interjecting substantial motion work, akin to summary judgment proceedings at the onset of the case, and stalling out a case by staying plaintiff’s discovery while permitting defendant to conduct discovery on issues related to the motion. Thus, practitioners faced with either filing or defending a case that deals with speech and public issues should carefully consider and analyze the scope and effect of a special motion to strike on their case because it can apply differently depending on how defendant’s alleged conduct is characterized.

DANNIELLE M. CAMPBELL is an associate at Burke Family Law in San Francisco. Dannielle assists clients in their divorce, child custody, and financial division matters in litigation or mediation, as well as obtaining domestic violence restraining orders and guardianships in California courts. www.burkefamilylaw.net

HOUMAN CHITSAZ is a partner at Nardell Chitsaz & Associates LLP in San Rafael, specializing in commercial and real estate cases in state and federal court. www.ncalegal.com

CONSTANCE YU is a principal of Putterman Yu LLP in San Francisco, California. Ms. Yu is an experienced trial lawyer, with her practice focused on business tort issues including disputes over complex commercial transactions, banking practices, intellectual property and real property rights, unfair competition, false advertising, and employment matters. www.plylaw.com

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