Those familiar with the legal system in California may believe that it is prone to misuse by those who can afford it. While there is some merit to such a claim, one way California has evened the playing field is through a statute attacking Strategic Lawsuits Against Public Participation (“Anti-SLAPP”). The textbook example of a SLAPP action is one involving political participation. The idea is that the voice of a dissenter can be silenced by those with resources by filing a defamation claim. With the prospects of facing substantial legal fees in having to defend such an action, regardless of the meritless nature of the lawsuit, the dissenter has no option but to stop participating in the political process.

With the passage of the Anti-SLAPP statute, under Cal. Civ. Proc. Code §§ 425.16 et seq., the plaintiff in the above example is subject to a special motion to strike the meritless claim, and the dissenter would be entitled to payment of his or her attorney’s fees upon prevailing on the motion. In addition, the statute further provides that a stay would be in effect until the motion is heard to slow down the accumulation of attorney’s fees, and the stay can only be lifted upon a noticed motion.

The purpose of a SLAPP suit is to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1109, fn. 1 (1999). The Legislature enacted the Anti-SLAPP statute to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal. App. 4th 855, 865 (1995).

When determining whether to grant an Anti-SLAPP motion, the court engages in a two-step process.  First, the defendant must make a prima facie showing that the challenged causes of action arise from acts in furtherance of the right of petition or free speech in connection with a public issue.  Cal. Civ. Proc. Code§ 425.16(b)(1); Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002).  Under Cal. Civ. Proc. Code § 425.16(e)(1), this includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding.” In other words, if you bring a legal action or make statements in a court proceeding, this would give rise to protection under the Anti-SLAPP statute.

If the court finds that a defendant has met the prima facie showing, it then must consider whether the plaintiff has demonstrated a probability of prevailing on its claims.  City of Cotati v. Cashman, 29 Cal. 4th 69, 76 (2002). In order to do so, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.  Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811, 821 (2002). If the court grants the motion, it must dismiss the action. The court may not grant leave to amend the complaint. Simmons v. Allstate Insurance Co., 92 Cal. App. 4th 1068, 1073 (2001).

Thus, by bringing an Anti-SLAPP motion, defendants would not only stop the bleeding and slow down the legal fees incurred, it would further obligate plaintiffs to show their cards in the hopes of defeating the motion. This obviously puts the defendant in a far superior position and should give the plaintiff pause before filing a meritless action for strategic purposes.

California’s Anti-SLAPP statute levels the playing field so that those with considerable resources cannot misuse the legal system to bully their opponents into silence and serves as a powerful tool for litigators to completely change the complexion of a case. When statements are made in any government proceeding, understand that such statements are protected, and do not fall into the Anti-SLAPP trap.