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.” (Code Civ. Proc. § 425.16, subd. (b)(1).)

Code of Civil Procedure section 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, even where 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 threshold 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. Code Civ. Proc. § 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Hunter v. 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 free speech” must fall within one of the four categories described in Code of Civil Procedure section 425.16, subdivision (e):

1. statements made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law;
2. statements made in connection with an issue under consideration or review by one of those bodies;
3. statements made in a place open to the public or a public forum in connection with an issue of public interest; and
4. any other conduct in furtherance of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest.

Irrespective of which of the four categories 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.

What matters, then, is the conduct on which the claim is actually based. As the Court of Appeal 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.” Where a single cause of action mixes protected and unprotected activity, the California Supreme Court has held that the motion may reach the allegations of protected activity, which will be stricken unless the plaintiff shows those claims have at least minimal merit. Baral v. Schnitt (2016) 1 Cal.5th 376.

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 section 425.16, a plaintiff may pursue any 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 test, which many courts do not reach, 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, “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.

How To Defend Against The Motion

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: a defendant who prevails on the motion is entitled to recover its attorney’s fees and costs. Code Civ. Proc. § 425.16, subd. (c). 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: marshal your evidence and do not hold back. You want to invite the court to get to the second prong of the test.

Keep in mind that filing an anti-SLAPP motion generally stays discovery in the case. If you need discovery to oppose the motion, you must ask the court for permission to conduct specified discovery and show good cause. Code Civ. Proc. § 425.16, subd. (g).

Be prepared for an appeal when dealing with an anti-SLAPP motion, win or lose. An order granting or denying the motion is immediately appealable. Code Civ. Proc. § 425.16, subd. (i). Make sure you have a complete record as you file your opposition. Be very mindful of preserving and making your record in case of an appeal.

Frequently Asked Questions

What is an anti-SLAPP motion?

It is a special motion to strike under California Code of Civil Procedure section 425.16. It lets a defendant ask the court to dismiss, early in the case, claims that arise from the defendant’s protected speech or petitioning activity, unless the plaintiff shows a probability of prevailing.

What counts as protected activity under the anti-SLAPP statute?

Section 425.16(e) lists four categories: statements made before a legislative, executive, judicial or other official proceeding; statements made in connection with an issue under consideration by such a body; statements made in a public place or public forum on an issue of public interest; and other conduct in furtherance of the right of petition or free speech in connection with a public issue.

How does a court decide an anti-SLAPP motion?

It uses two steps. First, the defendant must show that the claim arises from protected activity. If so, the plaintiff must present evidence showing a probability of prevailing on the claim. The critical question at step one is whether the claim itself is based on the protected activity (City of Cotati v. Cashman).

How much evidence does the plaintiff need to defeat an anti-SLAPP motion?

The plaintiff must show only minimal merit through admissible evidence. The procedure works like an early summary judgment: the court accepts the plaintiff’s evidence as true and considers the defendant’s evidence only to see whether it defeats the plaintiff’s evidence as a matter of law (Taus v. Loftus; HMS Capital v. Lawyers Title).

What happens if the plaintiff loses an anti-SLAPP motion?

The challenged claim is stricken, and a defendant who prevails on the motion is entitled to recover its attorney’s fees and costs. An order granting or denying the motion can be appealed immediately.

Is discovery allowed while an anti-SLAPP motion is pending?

Filing the motion generally stays discovery. The court may allow specified discovery if a party shows good cause, so a plaintiff who needs evidence to oppose the motion must ask the court for leave.