California civil litigators are SLAPP-happy

California's anti-SLAPP statute, Code of Civil Procedure Section 425.16, continues to generate an astonishing number of appellate decisions. For litigators, the contours of the anti-SLAPP statute should be readily familiar, providing for a special motion to strike a complaint that seeks to hold parties liable for exercising their rights of petition or free speech. To prevail on an anti-SLAPP motion, a moving party must show that "a claim arises from protected activity," meaning that protected activity "underlies or forms the basis for the claim." Park v. Board of Trustees of California State University, 2 Cal. 5th 1057, 1062-63 (2017). If the moving party succeeds, the burden shifts to the nonmoving party, who can still defeat the motion by establishing a "reasonable probability" of prevailing on the claims. Rusheen v. Cohen, 37 Cal. 4th 1048, 1065 (2006).

California's civil litigators appear to be SLAPP-happy. A survey examining the May 2017 to July 2018 timeframe revealed 220 appellate opinions (published and unpublished), with 152 full affirmances and 38 full reversals. That's almost four SLAPP motion opinions per week statewide. Trial court rulings were upheld 69 percent of the time, while full reversals occurred at a rate of 17 percent. That's a full reversal every 11 or 12 days. (The survey excluded cases involving the statute in ways other than the propriety of granting or denying the anti-SLAPP motion.)

Regarding published opinions, there were 31, with 17 full affirmances, seven full reversals, and seven other decisions featuring partial reversals. Thus, full reversals made up 22.5 percent of the published decisions -- and the rate of error doubles when partial reversals are considered. As for the unpublished decisions, full reversals occurred 16 percent of the time. Even if partial reversals are ignored, the rate of full reversals demonstrates that anti-SLAPP motions are tough to resolve correctly and ripe with potential for reversal (and publication). This is truly remarkable when one considers that the anti-SLAPP statute was enacted in 1992, and the statutory mechanics for an anti-SLAPP motion have remained pretty much unchanged since then.

Given that the appellate courts were making full reversals 17 percent of the time, it may be helpful to see how the mistakes shake out. An examination of the seven published full reversals in the survey period reveals that five featured reversal of denied anti-SLAPP motions, while two featured reversal of granted motions. The 31 unpublished full reversals in the survey period tended to even out more, with 17 full reversals of denied motions and 14 full reversals of granted motions. Altogether (published and unpublished), there were 22 full reversals of wrongly denied motions, and 16 full reversals of wrongly granted motions. This suggests that in the initial trial court proceedings, those entitled to the statute's protection are not getting it more often than those whose anti-SLAPP motions should be denied, erroneously do.

Regarding the five published full reversals of denied motions, three involved trial courts erroneously concluding that protected activity had not been targeted, thereby failing to recognize that the moving party had shifted the burden. Three others (one case featured both types of errors) involved courts erroneously concluding that the nonmoving party had demonstrated a reasonable probability of success on the claims, thereby failing to recognize that the nonmoving party had not met its burden. See De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018); Bel Air Internet, LLC v. Morales, 20 Cal. App. 5th 924 (2018); Santa Clara Waste Water Co. v. County of Ventura Environmental Health Division, 17 Cal. App. 5th 1082 (2017); Klem v. Access Ins. Co., 17 Cal. App. 5th 595 (2017); and Crossroads Investors, L.P. v. Federal National Mortgage Association, 13 Cal. App. 5th 757 (2017).

As for the two published full reversals of granted motions, one involved trial court failure to recognize that protected activity was not the thrust or gravamen of the complaint (moving party had failed to shift the burden), and both involved trial court failure to realize that the nonmoving party actually demonstrated a reasonable probability of success on the claims. See Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245 (2017); Urick v. Urick, 15 Cal.App.5th 1182 (2017). So it seems that when it comes to California's anti-SLAPP statute, we all know protected activity and reasonable probability of success when we see it, at least until a reviewing court tells us that we don't.

A recent California Supreme Court opinion in which the trial court got the ruling on the anti-SLAPP motion correct, also warrants discussion. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5th 637 (2018). There, the court resolved the question of whether an anti-SLAPP motion responding to an amended complaint can attack claims already presented in earlier iterations. The court said no. Anti-SLAPP motions attacking amended complaints can only be brought against new causes of action. The court reasoned that permitting anti-SLAPP motions attacking new claims in amended complaints prevents sharp plaintiffs from circumventing the protection of the statute by filing "an initial complaint devoid of qualifying causes of action and then amend[ing] to add such claims after 60 days have passed." The court also posited that limiting such attacks to new causes of action eliminates abuse by those who may want to delay litigation by stretching out the time between inception of the suit and the filing of an anti-SLAPP motion -- which carries with it the right to an immediate appeal.

On that last point, one has to wonder whether a case involving multiple anti-SLAPP motion appeals (arising from initial and amended complaints and timely motions attacking each), will involve any less delay than an appeal from a "belated" anti-SLAPP attack against all the claims in one motion. It's quite possible that the court's limitation will generate more, not fewer, appeals. All of which brings to mind the controversy over the anti-SLAPP statute's right to an immediate appeal. See, e.g., Grewal v. Jammu, 191 Cal. App. 4th 977, 998-99 (2011) (discussing particular "ways in which the anti-SLAPP procedure is being misused -- and abused," including inordinate delay of the plaintiff's case and unnecessary legal fees caused by immediate appeals).

But given the laudable purpose of the statute, isn't robust resort to anti-SLAPP motions by litigants more likely to ensure that it is actually serving those it was intended to protect? As noted above, the number of reversals of erroneous denials of meritorious anti-SLAPP motions over the survey period outnumbers wrongful grants. And when it comes to such erroneous denials, neither the motion nor the appeal can be described as abusive. Absent a very different picture potentially revealed by a larger study period, such statistics tend to mitigate against the Grewal court's criticism of the automatic right to appeal. After all, the entire purpose of the statute is for those who engage in protected activity not to have to defend SLAPP suits at all, and the absence of an immediate appeal would mean litigating to a final judgment before such rights can be vindicated -- Pyrrhic victories for protected activity.

Thoughts for legislative tinkering? What if only the denial of an anti-SLAPP motion was immediately appealable -- on the grounds that those for whom the statute's protections were (ostensibly) enacted, ought to at least have an immediate appeal? And what if those whose claims were partially defeated by a successful anti-SLAPP motion (where some claims were found not to target protected activity and thus, could go forward), could only seek a writ? The effect would be just like numerous situations where some of the claims live on and an appeal must wait for a final judgment. For now, the statute remains unamended, the anti-SLAPP motion guns are blazing, the appellate printing presses are humming, and it's no easy task for counsel -- and the trial courts -- to keep up.