Courts trending to cutting back anti-SLAPP law

Earlier this month, the California Supreme Court issued a unanimous decision in FilmOn.com Inc. v. DoubleVerify Inc., 2019 DJDAR 3835 (Cal. May 7, 2019), limiting the application of the state's ubiquitous anti-SLAPP law. To some, the case marks a first line in the sand that meaningfully limits the reach of the anti-SLAPP statute. But for the last several years state and federal courts have taken a harder look at the law and have narrowed its scope in important ways. The recent state Supreme Court decision is only the latest in a series of cases that restricts how far the anti-SLAPP statute can be taken.

California has long permitted defendants to file a special motion to strike a cause of action that aims to chill constitutionally protected speech. Such "strategic lawsuits against public participation" can be dismissed if, first: Defendants can show that the allegedly unlawful conduct is protected by the state or federal constitutions and, second: Plaintiffs cannot show a probability of success on their claims. This motion gives defendants a powerful tool to dismiss a lawsuit at the outset and permits recovery of attorneys' fees and costs if the motion is successful.

The state Supreme Court's recent decision continues a trend requiring courts to scrutinize anti-SLAPP motions carefully. Lower courts have applied its watershed 2016 decision, Baral v. Schnitt, 1 Cal. 5th 376 (Cal. 2016) to pare back expansive anti-SLAPP motions. Baral held that when defendants move to strike claims that are supported by allegations of both protected and unprotected activity under the anti-SLAPP law, courts may not strike an entire claim if that claim is also supported by allegations of unprotected activity. Instead, courts must evaluate each allegation and determine whether the anti-SLAPP law applies. Only allegations falling within the ambit of activity that the anti-SLAPP law protects may be stricken.

Although Baral reversed a Court of Appeal decision that it found "unduly limits the relief contemplated by the Legislature," courts applying Baral have further limited the application of the anti-SLAPP law. Following the Supreme Court's charge, Courts of Appeal now separate allegations supporting a claim into protected and unprotected activity when ruling on anti-SLAPP motions. A defendant's generalized contentions that a plaintiff's claims arise from protected activity are now unlikely to succeed.

In Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism, 23 Cal. App. 5th 28 (Cal. App. 4th Dist. April 19, 2018), for example, the Court of Appeal analyzed each allegation supporting the claims that the defendant had moved to strike in its anti-SLAPP motion. The plaintiff had asserted several causes of action relating to a breach of contract and supported them with numerous allegations. The trial court denied the defendant's anti-SLAPP motion, but the Court of Appeal reversed in part, holding that each allegation must be analyzed separately. Accordingly, it zeroed in on activity protected under the anti-SLAPP statute by proceeding through each relevant paragraph of the complaint.

More recently, in Laker v. Board of Trustees of California State University, 2019 DJDAR 1699 (Cal. App. 6th Dist. March 4, 2019), the Court of Appeal separated the allegations supporting a retaliation claim into two categories. It found allegations relating to the defendant's internal investigations to be unprotected activity. Defamation allegations supporting the retaliation claim, by contrast, were protected. The court granted the defendants' anti-SLAPP motion as to the defamation allegations only, allowing the retaliation claim to proceed supported only by allegations relating to the defendant's internal investigations.

Baral has required lower courts to examine the boundaries of the anti-SLAPP law more intensely. Defendants must identify challenged allegations in an anti-SLAPP motion and specify why they count as protected activity. Entire causes of action are less likely to be stricken wholesale. As these decisions have held, much lies outside the ambit of the anti-SLAPP statute.

It may be federal courts, however, that push the most significant changes for anti-SLAPP laws in the near future. Since 1999, when the 9th U.S. Circuit Court of Appeals held that California's anti-SLAPP statute applies in federal diversity cases, qualms about the law's potential conflicts with Federal Rules of Civil Procedure 12 and 56 have persisted. Most notably, several 9th Circuit judges argued for a complete ban on hearing anti-SLAPP motions in federal court in a dissent in Makaeff v. Trump University, LLC, 736 F.3d 1180 (9th Cir. April 17, 2013).

In what could be a hint of future developments, last year 9th Circuit judges called for revisiting an earlier ruling allowing interlocutory appeals of denials of anti-SLAPP motions. In a concurrence to Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 2018 DJDAR 4561 (May 16, 2018) two judges agreed that a 2003 9th Circuit decision permitting the practice was wrongly decided. The concurrence pointed out the "absurd result" that denials of anti-SLAPP motions are reviewed, but not grants, despite the greater finality of a grant because claims are stricken. The concurrence proposed disallowing these interlocutory appeals.

While not arguing for a complete ban on hearing anti-SLAPP motions in federal court, as some judges had in the Makaeff dissent, the Planned Parenthood concurrence noted a widening circuit split. Currently, the 1st, 2nd, 5th and 8th Circuits apply state anti-SLAPP laws, while the D.C., 7th, 10th and 11th Circuits have held that at least one state's anti-SLAPP statutes do not apply in federal court.

Enter the California Supreme Court for the latest trimming of California's law. In FilmOn.com, the state Supreme Court held that the context of the speech at issue matters: the speaker, the audience and the speech's purpose will establish whether a defendant may strike a cause of action. FilmOn.com analyzed how closely speech activities must be linked to "a public issue or an issue of public interest," as a catchall provision in the statute provides. The court held that the context of the speech determines whether a sufficient relationship exists between it and a matter of public interest. Under the facts before it, the court found that private commercial speech that did not circulate beyond subscribers was insufficiently connected to a public issue and therefore not protected activity under the statute.

An anti-SLAPP motion remains one of the strongest means for defendants to fight back when sued for the exercise of constitutionally protected speech. But as recent cases suggest, courts are trending toward limiting the reach of California's expansive law. Litigants should be prepared for further developments here that may continue to refine the scope of the anti-SLAPP statute.

Mr. Foran is counsel of record in National Abortion Federation v. Center for Medical Progress, a case related to the Planned Parenthood case mentioned in this column.