Anti-SLAPP Motions Have Teeth.
The cheek slapped may be below the belt, and the force of that boot might propel your case right out the court room doors. The kick in the butt is found in CCP Section 425.16. The statute has been on the books since 1992. Amendments and case law have added teeth and sharpened their edges.
The boot that kicks these cases out has steel for five reasons: the motion is early in the litigation before evidence is gathered; the motion stays discovery of the evidence that could defeat the motion; the party bringing the motion recovers attorney’s fees if he wins, and the party opposing the motion has the burden of proving by a preponderance of evidence that the case has sufficient merit to proceed. Finally, even if the party bringing suit defeats the motion by showing a probability of winning on the merits, that outcome is not later admissible as evidence at trial. No surprise this motion is popular with defendants.
Anti-SLAPP Motions Require Proof of a Protected Activity Concerning Issues of Public Interest.
The “Anti-Slapp” statute requires the exercise of freedom of speech concerning a public issue. The party claiming freedom of speech must initially present proof of this threshold requirement. But then the burden shifts to the party filing the suit, known as the “plaintiff.” The plaintiff must prove by the weight of evidence that he is likely to prevail on the merits. Because the motion must be brought within 60 days of service of the complaint, and the motion itself is to be heard within 30 days of the motion being filed, the plaintiff is hard pressed to respond adequately.
The cases struggle with this definition of protected speech in particular situations. There are four examples of the protected speech provided by the statute. The last category is quite useless without judicial interpretation. That category, something of a catch all, defines “constitutionally free speech” as “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 circularity of the definition is patent.
So what is an issue of public interest? The legislature and courts have expanded the definition to mean any topic in which the public is interested, rather than using an objective or high minded standard that the topic is significant. So, something as trivial as a CSI episode that generates web site postings can satisfy the “public interest” requirement. Tamkin v. CBS Broadcasting (2011) 193 Cal.App.4th at 142-145.
Defamation Suits Are Easy Targets for Anti-SLAPP Motions.
Because defamation suits are about speech, they are particularly vulnerable to anti-SLAPP motions. But even if the defaming party shows the speech is about a matter of public interest, the plaintiff can defeat the motion by proving through filed written testimony [affidavits] that the case for defamation more likely than not will prevail if heard in full trial.
In conclusion, CCP sec. 425.16 is a powerful weapon that allows a pre-emptive strike by defendants. Wise plaintiff’s counsel will think about how to draft the allegations to deflect an anti-SLAPP attack. Alleging a defamation occurring on a topic of “public interest” is a danger. The best practice is to obtain affidavits supporting the allegations of the complaint before the complaint is filed.