Defending An Anti-SLAPP Motion

What Is Protected Activity?

The anti-SLAPP statute allows a defendant to move to dismiss “certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.” Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421. At its heart, the statute provides that: “A cause of action against a person arising from any act of that person in furtherance of the person*s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (CCP S. 425.16 (b)(1).)

CCP S. 425.16 does not “immunize” any communications from forming the basis of a claim. Plaintiffs may defeat an anti-SLAPP motion by presenting prima facie evidence of their claim or claims to show a probability of success – irrespective of whether the claim is based on protected conduct. See, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 87.

In evaluating an anti-SLAPP motion, the courts have adopted a two-step, burden-shifting analysis. Under the first step, the court considers whether the defendant has made a rebuttable showing that a plaintiff’s cause of action arises from actions taken in furtherance of the defendant’s right of petition or their right of free speech in connection with a public issue. CCP S. 425.16(b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.; CBS Broadcasting Inc.,(2013) 221 Cal.App.4th 1510, 1519. The second step is for the plaintiff to present the “minimal” evidence necessary to demonstrate a reasonable probability of prevailing on the merits. Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.

The phrase “act in furtherance of a person*s right of petition or to free speech” must fall within one of the four categories described in CCP S. 425.16(e). Irrespective of which of the four categories listed in CCP *425.16(e)(2) applies, “[T]he critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” City of Cotati v. Cashman, (2002) 29 Cal.4th 69, 78.

Acting in the furtherance of one’s own interest is the sine qua non of the Anti-SLAPP Statute. As the Supreme Court in Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 267 explained: “If the core injury-producing conduct upon which the plaintiff’s claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.”

Prevailing On The Merits

The Anti-Slapp statute does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning nor does it confer any kind of immunity on protected activity. Navellier v. Sletten, (2002) 29 Cal.4th 82, 93, 94. Instead, under *425.16, a plaintiff may pursue any other cause of action based on protected activity if he or she is able to present the “minimal” evidence necessary to demonstrate a reasonable probability of prevailing on the merits. Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.

This is the second prong of the tests that most lower courts do not get to, because many believe that once the first prong is answered in the affirmative, no further inquiry is necessary.

The Legislature did not intend for the courts to weigh conflicting evidence to determine whether it is more probable than not that a plaintiff will prevail on the claim, “but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation.” Taus v. Loftus, (2007) 40 Cal.4th 683, 714. Thus, it is “the court*s responsibility is to accept as true the evidence favorable to the plaintiff [citation omitted] and evaluate the defendant*s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” HMS Capital, Inc. v. Lawyers Title Co,. (2004) 118 Cal.App.4th 204, 212.

After a careful analysis of the law, it is then crucial that plaintiff goes through each cause of action that the Anti-SLAPP motion targets and produces evidence to support each cause of action. Be meticulous and go paragraph by paragraph. Do not hold back as there may not be a second chance. It will be too late on appeal. The current trend is for the courts to grant these motions, more often than not, with hefty attorney’s fees. Be prepared to defend against the motion and treat it like you would a motion for summary judgment and summary adjudication. Can’t say this enough: marshall out your evidence and do not hold back. You want to invite the court to get to the second prong of the test.

Be prepared to an appeal when dealing with an Anti-SLAPP motion, win or lose. Make sure you have a complete record as you file your opposition. Be very mindful of preserving and making your record in the case an appeal.