California Supreme Court,
Constitutional Law
Nov. 30, 1999
Speech Expansion
Speech Expansion California courts interpreted the anti-SLAPP law expansively this year, broadening the statute's protection of defendant's First Amendment rights.
Douglas E. Mirell
Partner, Greenberg Glusker Fields Claman & Machtinger LLP
Email: dmirell@greenbergglusker.com
Doug's practice focuses on privacy, defamation, publicity rights, copyright, trademark and First Amendment litigation.
As the state races toward the next millennium, a brief reflection on a number of watershed developments this year in California's free-speech jurisprudence may be useful. Defendants have continued to test the limits of their right freely to discuss government and civic affairs, plaintiffs have persisted in their attempts to stifle the unbridled exchange of ideas and the Legislature and the courts have provided defendants a number of significant new weapons in their legal arsenal to protect their ability to engage in uninhibited discourse.
A strategic lawsuit against public participation, a SLAPP suit, is a meritless claim that threatens to deter or punish individuals who exercise their rights of free speech and petition. In 1993, to protect those victimized by such retaliatory lawsuits, California adopted its anti-SLAPP statute, Code of Civil Procedure Section 425.16.
Pursuant to a Section 425.16 special motion to strike, a judge can decide at the outset of the case whether the plaintiff has a reasonable probability of prevailing on its claim. If the judge finds that a cause of action lacks merit, that claim must be dismissed, and the defendant is entitled to recover its attorney fees and costs.
Most recently, on Oct. 10, Gov. Gray Davis signed AB1675. This legislation - which, as an urgency measure, became effective immediately - establishes a level playing field for defendants who wind up on the losing end of an anti-SLAPP motion. As originally enacted, Section 425.16 plaintiffs could file an automatic appeal if their complaint was dismissed as a SLAPP. However, the targets of SLAPP suits did not have the same appellate rights. Instead, losing defendants had to rely on a rarely granted discretionary writ.
By making the denial of an anti-SLAPP motion directly appealable, AB1675 should increase the protection against protracted litigation available to defendants who do not prevail before the trial court.
This significant statutory amendment did not, however, emerge from a legal vacuum. This year has also seen a number of important judicial decisions broadening both the scope and reach of the anti-SLAPP statute. These recent opinions have all read Section 425.16 quite broadly, finding in favor of defendants who challenged the legitimacy of claims that threatened to chill the exchange of ideas. What has evolved is a statute that protects expressive activity from being stifled by meritless lawsuits, while promoting the discussion and debate of public issues.
As California's anti-SLAPP jurisprudence has developed, the federal courts have had to enter the arena and resolve issues arising under Section 425.16. The 9th U.S. Circuit Court of Appeals recently considered whether the state's anti-SLAPP statute is applicable in federal diversity cases.
In United States ex rel. Newsham v. Lockheed Missiles & Space Co., 171 F.3d 1208 (9th Cir. 1999), defendants argued that the district court's refusal to apply the anti-SLAPP statute denied them their substantive rights under California state law in violation of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The plaintiffs claimed that the 9th Circuit should not adopt the California statutory regime because it collides with Rules 8, 12 and 56 of the Federal Rules of Civil Procedure.
Although the Lockheed court noted that Section 425.16 and the federal rules serve a similar purpose in weeding out meritless claims before trial, it found no "direct collision" between the two. The court concluded that, given the important, substantive state interests furthered by the anti-SLAPP statute, e.g., "protecting the constitutional rights of freedom of speech and petition for redress of grievances," the statute should apply to federal diversity cases.
For its part, the California Supreme Court this year substantially broadened the reach of Section 425.16. In Briggs v. Eden Council For Hope and Opportunity, 19 Cal.4th 1106 (1999), plaintiffs sued an organization that provides counseling and mediation services to tenants, alleging the organization made defamatory statements while providing those services similarly. In response to defendant's anti-SLAPP motion, the plaintiffs argued that Section 425.16 applies only to statements or writings "made in connection with an issue of public interest."
The Briggs court rejected the plaintiffs' reading of the statute, finding that the anti-SLAPP law is not limited to matters of "public interest." It concluded that a defendant who moves to strike a complaint arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding "need not separately demonstrate that the statement also concerned a matter of public significance."
Likewise, California's Courts of Appeal have shown a willingness to affirm Section 425.16 motions to strike. In Sipple v. Foundation for Nat'l Progress, 71 Cal.App.4th 226 (1999), for example, Mother Jones magazine published an article that focused on alleged incidents of spousal abuse disclosed during a custody dispute between the appellant and his first wife. In granting the magazine's anti-SLAPP motion, the court concluded that a custody dispute falls within the meaning of Section 425.16 as a "legislative, executive, or judicial proceeding."
Significantly, the court found that statements gathered from interviews conducted by the article's author, which were not themselves part of the custody hearing, also fell within the scope of the anti-SLAPP statute. The court reasoned that, if the First Amendment activity took place in an official proceeding or was made in connection with an issue under review in an official proceeding, that activity also should fall within the ambit of Section 425.16.
This expansive interpretation has become the norm in anti-SLAPP jurisprudence. In Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees Local 483, 69 Cal.App.4th 1057 (1999), the plaintiff hotel brought a defamation claim arising from a news broadcast. The Court of Appeal affirmed the trial court's judgment striking the complaint, finding that the plaintiff failed to make a prima facie showing to support its claim. It reasoned that, although the statement at issue, standing alone, could have been construed as false, no reasonable viewer would interpret it as false when considering it in the context of the entire broadcast.
Similarly, in Conroy v. Spitzer, 70 Cal.App.4th 1446 (1999), a candidate for public office alleged that his rival made numerous defamatory statements about a sexual-harassment suit filed by the candidate's former assistant. As in Monterey Plaza, the appellate court upheld the trial court's dismissal of the complaint. It found that defendant's statements fell within the purview of Section 425.16 because they involved his right of free speech in connection with a public issue. The court also concluded that the plaintiff failed to show a probability of prevailing on his defamation claim.
In addition to getting a SLAPP suit dismissed, a successful defendant is entitled to recoup its defense costs and attorney fees under Section 425.16(c). Given the anti-SLAPP statute's overall goal of granting relief to people punished for participating in protected conduct, this year's cases have broadened this subsection.
In Moore v. Liu, 69 Cal.App.4th 745 (1999), the court considered whether a SLAPP-suit plaintiff could avoid paying the defendant's attorney fees by dismissing its claim before a hearing on the motion to strike the complaint. The court held that a defendant who is voluntarily dismissed after filing an anti-SLAPP motion is nevertheless entitled to have the merits of the motion resolved if only as a predicate to adjudicating that defendant's entitlement to recover its attorney fees and costs. Thus, the trial court retains jurisdiction to award statutory costs and attorney fees, notwithstanding a plaintiff's abandonment of its action.
Similarly, in Kyle v. Carmon, 71 Cal.App.4th 901 (1999), the appellate court assessed whether a trial court has the authority to strike a complaint after the plaintiff files a voluntary dismissal with prejudice. Though the Kyle court held that granting the Section 425.16 motion is void for lack of jurisdiction if the dismissal was filed before the court's ruling, it nevertheless affirmed the trial court's award of the defendant's attorney fees and costs. The court cited Moore in holding that a plaintiff's voluntary dismissal of its suit after the defendant files an anti-SLAPP motion to strike does not preclude a court from awarding attorney fees and costs.
In every SLAPP-suit opinion published in 1999, the court sided with the SLAPPed defendant. These cases clearly demonstrate how Section 425.16 continues to develop and expand. As the year comes to a close, California's legislators, as well as its federal and state courts, apparently remain committed to broadening the protections afforded defendants forced to expend money, time and resources responding to SLAPP suits. With last month's amendment to Section 425.16, this trend should continue well into the next millennium.
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