How to Benefit from California Anti-SLAPP Motions

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I.   Introduction

You may have never heard the word SLAPP before, except in the context of “to hit something with a flat object.”  In the context of a lawsuit, a SLAPP is a vicious tool used to intimidate someone and saddle them with litigation costs in an effort to force them to give up a valuable right.

More formally, a SLAPP—Strategic Lawsuit Against Public Participation—is a lawsuit that seeks to deter or punish citizens for exercising their right to free speech and petition.[1]  Generally, a SLAPP is a “meritless lawsuit filed primarily to chill the defendant’s exercise of First Amendment rights.”[2]

The distinguishing feature of a SLAPP is that the goal is not to win the lawsuit but to obtain an economic advantage over a party.[3]  Because the goal is to obtain economic advantage, a defendant’s traditional safeguards against meritless actions, e.g., lawsuits for malicious prosecution or requests for sanctions, are inadequate to contend with SLAPPs.[4]

Plaintiffs disguise SLAPPs by asserting various claims for relief against the defendants.  One of the favored causes of action is defamation.[5]  Another favored tool used to punish a person for asserting his or her right to petition is a lawsuit for malicious prosecution.[6]

Defendants who face a SLAPP lawsuit in California have a powerful weapon they can use to dispose of a SLAPP through a streamlined procedure referred to as an anti-SLAPP motion.

Many states have adopted anti-SLAPP legislation, but California’s anti-SLAPP statute has put California on the forefront of anti-SLAPP litigation.  In 2009, there were approximately 1727 reported anti-SLAPP filings nationwide.[7] Of those, 1,386—80%—of the cases were in the State of California.[8]

II.   Background

The Supreme Court has recognized that we have a profound national commitment to the free exchange of ideas, which is enshrined in the First Amendment.[9]  Courts often uses terms like “enshrined” to emphasize just how important our right to free speech is, especially to our political processes and institutions.  The case law governing our exercise of First Amendment rights is designed “so that protected speech is not discouraged.”[10]  For example, in the context of a malicious prosecution lawsuit, the California Supreme Court has created a very lenient standard for bringing a civil action—a petition protected by the First Amendment—because of “the important public policy of avoiding the chilling of novel or debatable legal claims.”[11]

To those ends, the California Legislature enacted Code of Civil Procedure section 425.16 (the “anti-SLAPP statute”) to provide a procedural remedy to dispose of lawsuits that are brought to chill the exercise of a party’s right to free speech and petition.[12]

The anti-SLAPP statute authorizes a “special motion to strike,” akin to a motion to dismiss, for the “prompt exposure, dismissal, and discouragement of [SLAPPs].”[13]  It “establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.”[14]

III.   Activities Protected by the Anti-SLAPP Statute.

California’s anti-SLAPP statute defines four broad categories of conduct that constitute an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.”[15]  Those four categories are the following:

  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;
  3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,; or
  4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

The first category encompasses all “petition-related” activities made in an official proceeding, such as statements or writings presented in legislative or executive proceedings, and filing or defending lawsuits.  The second category encompasses  statements or writings concerning an issue that is under consideration by an governmental body or in an official proceeding.  For example, writing an open letter regarding a new crime bill pending before Congress, protesting proposed new zoning laws, and the like.

The third category covers statements or writings made (1) in a public place and (2) about an issue that has public interest.  This category protects statements and writings that are about subjects that are not presently pending before a governmental body and are not made in any official proceeding.  The forth category is a catchall that protects any first-amendment related activity in connection with public issues or matters in the public interest.

IV.   Learn More: Download the FREE Info Brief.

For more information on anti-SLAPP motions, please download and read my FREE informational briefing on California’s anti-SLAPP law.  The info brief describes the anti-SLAPP special motion to strike, the elements to prevail in an anti-SLAPP motion, exceptions where the anti-SLAPP law does not apply, timing of anti-SLAPP motions, applicability in federal court, and more.

The info brief is not up on the firm website yet, so please send me an email request if you would like me to send you a copy.


[1] Wilcox v. Superior Court, 27 Cal. App. 4th 809 (1994).

[2] Bradburry v. Superior Court, 49 Cal. App. 4th 1108, 1113 (1996).

[3] Wilcox at 816.

[4] Id. at 817.

[5] Chavez v. Mendoza, 94 Cal. 4th 1083, 1087-1090 (2001).

[6] “By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.”  Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734-735 (2003) (fn. Omitted).

[8] Id.

[9] Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 685-86 (1989).

[10] Id.

[11] Sheldon Appel Co., v. Albert & Oliker, 47 Cal. 3d 765, 863 (1989).

[12] Rusheen v. Cohen, 37 Cal. 4th 1048, 1055-56 (2006) (citations omitted).

[13] United States ex rel Newsham v. Lockheed Missiles & Space Company, 190 F.3d 963, 971 (1999) (quoting Wilcox at 817).

[14] Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 278 (2006).

[15] Cal. Civ. Proc. Code § 425.16(e).

12 Ways Businesses Can Save Money on Litigation Costs

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I recently wrote an article entitled “12 Ways Businesses Can Save Money on Litigation Costs.”  The article is not up on the firm website yet, so please send me an email request if you would like me to send you a copy.

Here is an excerpt:

Litigation is expensive.  Lawyers are expensive.  So, it is no wonder that most businesses and professionals do whatever they can to avoid litigation.  Sometimes, the desire to avoid litigation is so strong that businesses pay more than they should to resolve a claim, or they abandon valuable rights because they feel the cost of litigating outweighs the value of the right.

This may be a rational approach in many cases.  Indeed, researchers have concluded that dispute resolution has a substantial and disproportionate effect on small businesses.  “The impact of litigation on businesses goes well beyond the purely financial impact of legal fees and damages. Most small business owners are invested personally in their businesses; litigation causes not just financial loss, but also substantial emotional hardship, and often changes the tone of the business.”  (Impact of Litigation on Small Business, Klemm Analysis Group ii (2005)).

Nevertheless, there are times when a business must enforce or defend its rights in court.  Some disputes have to be litigated.

There is no escaping the fact that litigation is expensive, and that even diligent, experienced attorneys have a difficulty effectively budgeting complex business cases.

Still, there are a few things a business or professional can do to reduce some of those costs.  The following list contains 12 things you can do that are guaranteed to reduce your legal bill.  More importantly, doing these 12 things will put your case on a firm foundation and enhance your lawyer’s ability to present your claim or defend you from someone else’s claims.

  1. Be organized.
  2. Consult your lawyer early in the dispute.
  3. Prepare a detailed chronology of events leading up to the dispute.
  4. Organize your documents.  Most business disputes are document intensive.
  5. Make a thorough list of potential parties and witnesses.
  6. Take Photographs, make videos, and make audio recordings of important events, places, and things related to the case.
  7. Preserve your electronic data.
  8. Understand what the legal system can do for you and decide on your goals.
  9. Be proactive.
  10. Follow your lawyer’s advice.
  11. Pay attention to your fee agreement.
  12. Keep an “agenda” folder or notepad with a list of subjects you want to discuss with your lawyer.

Taking the sting out of testifying at trial or in depositions.

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If you are a party to a lawsuit or arbitration, you may be required to testify at trial or in a deposition.  Even if you are not a party to a lawsuit, you may be subpoenaed to testify in a trial as a witness if you have personal knowledge about the events and circumstances involved in a civil or criminal case.  I have written a free ebooklet that can help you out!  Keep reading.

You may have some idea of what it means to testify at trial from watching movies or television shows that depict civil or criminal trials.  But you might be unfamiliar with depositions.  In law, a deposition is a pre-trial discovery tool used in civil litigation.  Pre-trial discovery tools are procedures that can be used by one party to obtain facts and information about another party’s case in order to assist that party’s preparation for trial.  A deposition allows one party to obtain sworn testimony from another party or witness under an oral (or sometimes written) examination.  The deposition takes place out of court, but in the presence of a court reporter.  A deposition is essentially like being cross-examined outside of court.

In both trial and at deposition, the court reporter transcribes every question you are asked, every answer you provide, and anything else that is spoken during your testimony (such as objections and arguments).  After your deposition, the court reporter prints the transcript it into book form, which you will have an opportunity to review and even correct.  (You do not have the luxury of making corrections to the transcript after you testify at trial.)

Most people do not relish the idea of giving a deposition or testifying at trial.  There are lots of reasons for this.  Some people feel—justifiably—that the lawyer examining (or cross-examining) them is trying to trip them up and trick them into admitting things they did not intend to say.  Others are concerned that the lawyer is going to try to embarrass them and back them into a corner.  Still, other people feel that they are going to be accused and attacked by the lawyer.

Some lawyers do try to use those tactics, and some are quite effective with them.  With the assistance of a skilled lawyer to prepare and defend you, many of these tactics can be diffused. Still, if you are the plaintiff in the lawsuit, you will have to go through this process in order to prove your claim and obtain the relief you seek.  Unfortunately, if you are the defendant, you must endure this process in order to defeat the accusations leveled against you.

How to Give Effective Testimony at Trial and in Deposition.

I have recently written a FREE ebooklet called “How to Give Effective Testimony at Trial and in Deposition,” by which I hope to take the sting out of giving testimony by teaching ways to answer questions that will be helpful instead of harmful, and helping witnesses steer clear of the traps that aggressive lawyers sometimes try to snare them with.  This booklet is not a recipe book of tricks.  Tricks and deceptive practices do not win lawsuits, because skilled lawyers will expose them and judges and juries generally see through them.  Truthful testimony married with effective lawyering will maximize the likelihood of prevailing in your case.  Studying my booklet will not get you out of giving testimony at your deposition or in trial, but it will help take the sting out of getting through it.

The booklet is not up on the firm website yet, so please send me an email request if you would like me to send you a copy.