Strategic Lawsuits Against Public Participation (SLAPP Suits) in California
Far too often litigants file lawsuits strategically for the purpose of chilling a person’s free speech and expression. These lawsuits are commonly described using the acronym SLAPP, or “Strategic Lawsuits Against Public Participation.” The threat of these lawsuits presents potential defendants with choice of either curtailing their constitutionally protected speech, or undergoing a lengthy and expensive lawsuit. Luckily, Code of Civil Procedure section 425.15 provides defendants faced with this dilemma a powerful tool to fight back.
Section 425.16, also known as the “Anti-SLAPP Statute” allows defendants to have the case against them dismissed if the Plaintiff’s claims arise out of the defendant’s exercise of their right of petition or free speech under the United States and California Constitution. Prevailing on an “anti-SLAPP motion” is a two-step process. First, the defendant must show that the Plaintiff’s claims arise out of the defendant’s exercise of their right to petition or free speech. If that showing is made, the burden shifts to the Plaintiff to show that they have a probability of prevailing on the merits of their claims. This process allows courts to dispose of meritless first amendment claims before significant costs are incurred by the parties.
Common Privileges Impacting Anti-SLAPP Motions
There are two legal privileges that commonly come into play on an anti-SLAPP motion. Those include the litigation privilege, and the fair and true reporting privilege.
The litigation privilege is codified in Civil Code section 47(b). it provides that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. Accordingly, any lawsuit other than malicious prosecution based on something said in a courtroom or legal filing is barred by the litigation privilege. This privilege is absolute, and the intention of the party making the publication is irrelevant.
The fair and true reporting privilege is codified at Civil Code section 47(d). it provides that any fair and true report in, or communication to, a public journal concerning a judicial, legislative or other official proceeding is privileged. For this privilege to apply the communication must capture the “gist” or “sting” of the underlying proceedings. Precise accuracy is not required. Like the litigation privilege, the fair and true reporting privilege is also absolute.
To review Gregory Brown’s seminar on Anti-SLAPP motions given to the Orange County Trial Lawyers, click here.Anti-SLAPP Seminar PowerPoint- FINAL
Anti-SLAPP motions are meant to dispose of frivolous lawsuits early on in litigation before both parties incur significant litigation costs. For that reason, an anti-SLAPP motion must be filed within 60 days after a defendant is served with a copy of the plaintiff’s complaint. The Court in its discretion may allow an anti-SLAPP motion to be filed at a later time, however, it has no obligation to hear a belatedly filed anti-SLAPP motion, even if the motion is likely to be successful.
If a defendant prevails on an anti-SLAPP motion, the plaintiff is required to pay the defendant’s attorney fees and costs incurred in bringing the motion. If a plaintiff is successful in defeating an anti-SLAPP motion, recovering fees is not guaranteed. Instead, the Plaintiff must show that the anti-SLAPP motion was “frivolous” or filed merely to cause “unnecessary delay.”
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