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What is a SLAPP lawsuit and an anti-SLAPP motion?

SLAPPback actions are discussed below, but first some knowledge of SLAPP law is necessary to understand the concept.

A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Our own Aaron Morris, a well-known writer on the topics of defamation and anti-SLAPP motions, has instead coined the phrase Spurious Litigation Against Public Participation, since that better captures both the goal of the plaintiff and the nature of the lawsuit. Calling such lawsuits "strategic" gives them far too much credit.

SLAPP-BackThe action is spurious and frivolous because the typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP may also intimidate others from participating in the debate.

There is currently no Federal anti-SLAPP law, but approximately 30 states have enacted or are in the process of enacting such legislation. California has a unique variant of anti-SLAPP legislation which has led to a significant volume of SLAPP litigation in this state. California is truly the anti-SLAPP capitol. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone, with just 341 case spread among the rest of the states with anti-SLAPP statutes. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.

California’s anti-SLAPP law is contained in Code of Civil Procedure § 425.16, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. Although called a motion to strike, the anti-SLAPP statute is a complicated hybrid of a number of motions from demurrers to motions for summary judgment, with a dash of injunctive relief. When a defendant is served with a lawsuit the defendant asserts is designed to improperly silence his speech, he has the option of filing an anti-SLAPP motion in the first 60 days after service (although the court can extend this deadline on a showing of good cause).

Once filed, the motion stays any discovery. This advances the purpose of the underlying statute, which is intended to save defendants from spurious defamation actions, but at the same time it can frustrate the plaintiff with a legitimate claim, who now must show a reasonable likelihood of success in the action, with his hands tied by the discovery stay. (The plaintiff can ask the court for permission to conduct limited discovery on a showing of good cause.)

The three important anti-SLAPP statutes are set forth here, but the heart of legislation is set forth in subpart (e) of Code of Civil Procedure section 425.16, which provides:

(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;

(4) or 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.

To win an anti-SLAPP motion, the defendant must first show that the speech in question falls under one of the four sections set forth above. But that is just the first prong of the analysis. If the defendant proves the speech was protected, the plaintiff can show that he is still likely to prevail on the action. In other words, defamatory speech is not protected simply because it falls under one of the four sections. (Keeping in mind that speech is not defamatory if it is privileged.)

The least clear of the four sections, and the section that leads to the most contentious anti-SLAPP disputes, is section 4. Section 4 is a catch-all, seeking to protect of " . . . the constitutional right of free speech in connection with a public issue or an issue of public interest." If you are not sure what constitutes an "issue of public interest" you are not alone. These are the words from the statute that are giving the courts the most trouble.

Here is a typical scenario to illustrate the point. A person goes to a doctor and is very displeased with the way the doctor handles the appointment. The patient goes home and goes to, where he can post a review of the doctor. He posts that the doctor is a quack, who should lose his license. The doctor sees the post and sues the patient for defamation.

Can the patient successfully bring an anti-SLAPP motion? Is the doctor’s performance a matter of "public interest"? Most courts have found that a doctor’s performance is one of public interest, but some look at the forum and the number of people involved. Some hold that the public’s interest in this one doctor is not broad enough to be a matter of public interest, and would deny the anti-SLAPP motion on that basis, never reaching the second prong. Others hold that a doctor’s performance, discussed on a website specifically intended to provide a forum for patients to discuss doctors, would constitute a matter of public interest, and would find that defendant has met the first prong, leaving it to plaintiff to prove a likelihood of success. In that regard, two different judges could reach different conclusions. One might conclude that calling a doctor a "quack" is merely colorful hyperbole and not defamatory, and therefore grant the anti-SLAPP motion and dismiss the case, concluding that the plaintiff doctor has no likelihood of success. The other judge might conclude that it is an attack on the doctor's professionalism and is therefore defamatory, and permit the doctor plaintiff to proceed with the action.

Same facts, multiple results, all based on whether the court found the statements to be a matter of public interest. Frankly, the procedural requirements of section 425.16, its interaction with other statutes such as Civil Code 47 (the statute defining what is privileged speech) and the latest definition of "public interest", which changes from week to week, is often far too challenging for a trial court judge to decipher in the limited time he or she has to consider an anti-SLAPP motion.

And a bad decision by the judge can be devastating to the defendant or plaintiff. If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint.

What is a SLAPPback?

California is very serious about discouraging SLAPP suits, since they are the bane of free speech. Section 425.16 already provides for the award of attorney fees to a defendant who brings a successful anti-SLAPP motion, but the California Legislature decided that was not enough. Being sued for defamation can take a toll that far exceeds the attorney fees incurred in successfully defeating that action. So in 2005 the Legislature passed California Code of Civil Procedure § 425.18, which creates the "SLAPPback".

A SLAPPback is a claim for malicious prosecution or abuse of process based on an earlier lawsuit dismissed pursuant to anti-SLAPP motion. (Like any malicious prosecution action, you must prevail in the prior action before pursuing a SLAPPback.) The purpose and intent of a SLAPPback is to seek damages beyond the attorney fees incurred, for things such as "stress-related health issues, strained family relationships, and financial distress or even insolvency." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 280.)

Just as a special procedure was created to quickly resolve SLAPP motions, SLAPPback claims are subject to a "special motion to strike" that is the same as provided by CCP § 425.16 for SLAPP suits, with a few changes. Most importantly, the motion to strike a SLAPPback action does not stay discovery, and a prevailing defendant is not entitled to recover attorney fees. You see, since the defendant in the prior action, now the plaintiff in the SLAPPback action, has already proven the underlying case lacked merit, he, she or it should not be discouraged from seeking damages with a threat of attorney fees, nor be frustrated in the effort to gather evidence with a discovery stay. On the other hand, if the now defendant continues with his harassing behavior by filing a frivolous anti-SLAPPback motion, the plaintiff can again recover attorney fees for fighting the motion. This "stack(s) the procedural deck" in favor of the SLAPPback plaintiff, "exempting the plaintiff from fees and costs even if the plaintiff's SLAPPback action is stricken." (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at 282.)

As you can see, this is a complex area of the law with many overlapping and sometimes even inconsistent statutes to navigate. A defamation action, an anti-SLAPP motion and a SLAPPback action can be a costly minefield if the judge fails to fully understand the law. If you are going to enter that minefield, you need an attorney who is a recognized expert in this field. You need Aaron Morris from Morris & Stone, an attorney whose primary area of practice is defamation (slander and libel) and all the accompanying motions.

Call for a free telephone consultation at (714) 954-0700.

Aaron Morris, a partner with Morris & Stone, is a recognized expert in fighting defamation, both on and off the Internet. He provides exceptional legal representation to businesses and individuals on matters related to defamation (libel and slander), trade libel, and false light invasion of privacy. Similarly, when someone is falsely accused of defamation, he fights for their right of free speech with anti-SLAPP motions.

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More Information About Anti-SLAPP and SLAPP-back Law

For more information about our recent cases and court decisions about SLAPP law, visit our website California SLAPP Law.  Here are the ten most recent articles: