SLAPP Update

California's anti-SLAPP statute provides for the early dismissal of strategic lawsuits against public participation (called "SLAPPs"). See Cal. Civ. Proc. Code § 425.16(b)(1). Anti-SLAPP issues can arise in any number of practice areas, and every attorney in the Golden State should be familiar with the basics of this oft-cited statute. Since its passage in 1992, anti-SLAPP motions have generated nearly 600 published appellate opinions. A random visit to a busy Law and Motion department on any given day will likely yield one or more anti-SLAPP motions being argued with vigor.

Two-Prong Test

An anti-SLAPP motion may be filed within sixty days of service of a complaint. § 425.16(f). Courts engage in a two-pronged analysis when reviewing the motion. First, a judge will determine if the activity targeted by the complaint is protected speech or petitioning activity, as defined by the statute. If that is the case, the judge will proceed to examine whether the plaintiff has shown a probability of success on the merits.

The statute applies to causes of action that arise from acts "in furtherance of [a] person's right of petition or free speech . . . in connection with a public issue." § 425.16(b)(1). Those rights include making written or oral statements before legislative, executive, or judicial proceedings, or before any other "official proceeding" authorized by law. § 425.16(e). They also cover written or oral statements made in connection with issues under consideration in those proceedings, as well as any statement made in a place open to the public or a public forum in connection with an "issue of public interest." Id. Finally, the anti-SLAPP statute protects any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest. § 425.16 (b), (e).

Official Proceedings

Section 425.16 applies to a host of official proceedings, including judicial cases (and most conduct associated with litigation); private hospital peer review; and various executive and legislative proceedings, such as those associated with putting local initiative measures on the ballot. See Rusheen v. Cohen, 37 Cal. 4th 1048 (2006) (noncommunicative acts enforcing default judgment); County of Riverside v. Pub. Emp't Relations Bd., 246 Cal. App. 4th 20 (2016) (statutory hearing procedures); Armin v. Riverside Cmty. Hosp., 5 Cal. App. 5th 810 (2016) (hospital peer review); Dwight R. v. Christy B., 212 Cal. App. 4th 697 (2013) (child protective services investigation); Vargas v. City of Salinas, 46 Cal. 4th 1 (2009) (local ballot initiative). However, unofficial proceedings, such as homeowners association meetings, do not qualify as official proceedings (although there can be other grounds for inclusion of homeowners association disputes under the statute, such as a communication on a matter of "public interest"). See Talega Maint. Corp. v. Standard Pac. Corp., 225 Cal. App. 4th 722 (2014) (HOA meeting not an "official proceeding"); Country Side Villas HOA v. Ivie, 193 Cal. App. 4th 1110 (2011) (matter before HOA may constitute an "issue of public interest" under anti-SLAPP statute).

Litigation Activities

When assessing whether litigation activity triggers anti-SLAPP protection, be aware that the statute may not apply to every contested matter. Although it extends to certain litigation conduct, including negotiation and settlement activities, Seltzer v. Barnes, 182 Cal. App. 4th 953 (2010), there is a current debate over whether the anti-SLAPP statute applies to private arbitration. See Century 21 Chamberlain & Assocs. v. Haberman, 173 Cal. App. 4th 1 (2009) (private arbitration not protected); Freeman v. Schack, 154 Cal. App. 4th 719, 730 (2007) ["[P]ursuit of arbitration proceedings is a protected activity.").

Legal Malpractice Claims

There is an ongoing split among the California courts of appeal as to whether the anti-SLAPP statute applies to suits claiming legal malpractice and professional misconduct, although recent cases have leaned towards the statute not being applicable. Compare Loanvest I, LLC v. Utrecht, 235 Cal. App. 4th 496 (2015) (not covered), Sprengel v. Zbylut, 241 Cal. App. 4th 410 (2015) (not covered), Castleman v. Sagaser, 216 Cal. App. 4th 481 (2013) (not covered), and Coretronic Corp. v. Cozen O'Connor, 192 Cal. App. 4th 1381 (2011) (not covered), with Fremont Reorganizing Corp. v. Faigin, 198 Cal. App. 4th 1153 (2011) (covered).

According to judges who argue that legal malpractice suits are protected activity, such as Presiding Justice Perluss of the Second District, Division Seven, as long as "claims are based on the lawyer's actions in litigation," under the plain language of the statute "they arise from acts in furtherance of the right of petition." Sprengel, 241 Cal. App. 4th at 162 (Perluss, P.J., dissenting).

Discrimination Claims

There is another split between the California courts of appeal on whether certain discrimination claims are based on protected conduct under the anti-SLAPP statute. In employment discrimination cases, some courts have ruled that speech or petitioning activities are the targeted conduct and discrimination is merely a motive, and therefore the claims are subject to anti-SLAPP motions to strike. Daniel v. Wayans, 8 Cal. App. 5th 367 (2017); Hunter v. CBS Broad., Inc., 221 Cal. App. 4th 1510, 1522 (2013); Tuszynska v. Cunningham, 199 Cal. App. 4th 257, 268-269 (2011). However, other courts have decided that discrimination is the conduct at issue while the First Amendment is merely a defense to be decided later in litigation, and thus motives are relevant and the statute does not apply. Wilson v. Cable News Network, Inc., 6 Cal. App. 5th 822, 824-25 (2016), review granted 2017 WL 889054 (Cal. Mar. 1, 2017) (No. S239686); Un Hui Nam v. Regents of the Univ. of Cal., 1 Cal. App. 5th 1176, 1188-89 (2016); Martin v. Inland Empire Utils. Agency, 198 Cal. App. 4th 611, 625 (2011).

The California Supreme Court is likely to address this issue and potentially resolve the split in Park v. Board of Trustees of California State University, 239 Cal. App. 4th 1258 (2015), review granted, 362 P.3d 430 (Cal. Dec. 15, 2015) (No. S229728), which will tackle whether Nam supports the proposition that a defendant's motive is relevant to both prongs of the anti-SLAPP analysis.

What's Important?

Courts have interpreted the phrase "issue of public interest" with varying breadth. On the narrow end of the spectrum, some have held that activities implicate the public interest if the subject of the statement or activity is a "'person or entity in the public eye,'" involves conduct that "'could affect large numbers of people beyond the direct participants,'" or involves a "'topic of widespread, public interest.'" Cross v. Cooper, 197 Cal. App. 4th 357, 373 (2011) (citation omitted). Some have further held that an actual, demonstrated interest in an issue must exist. Price v. Operating Eng'rs Local Union No. 3, 195 Cal. App. 4th 962, 974 (2011).

On the other hand, other courts have broadly held that fame or celebrity alone is sufficient, No Doubt v. Activision Publ'g, Inc., 192 Cal. App. 4th 1018, 1027 (2011), or even "any issue in which the public is interested," Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008).Under the broad standard, issues of public interest include, for instance, the location of a registered sex offender's residence, Cross, 197 Cal. App. 4th 357, criticism of a private homeowners association board, Country Side Villas Homeowners Ass'n v. Ivie, 193 Cal. App. 4th 1110 (2011), statements about a nationally known political consultant's abuse of his former spouses, Sipple v. Found. for Nat'l Progress, 71 Cal. App. 4th 226, 230-31, 236-40 (1999), a businessman's derogatory remarks on websites against his ex-girlfriend and her mother, Chaker v. Mateo, 209 Cal. App. 4th 1138, 1145-47 (2012), and confusing and misleading pamphlets concerning a drug, Rivera v. First DataBank, Inc., 187 Cal. App. 4th 709, 716 (2010).

But conversely, under the narrow standard, courts have held there is no issue of public interest in a case involving city land use guidelines, USA Waste of Cal., Inc. v. City of Irwindale, 184 Cal. App. 4th 53 (2010), a union's statements about supervision of custodians involving an allegedly unlawful workplace activity, Rivero v. Am. Fed'n of State, Cty., & Municipal Emps., AFL-CIO, 105 Cal. App. 4th 913, 924-25 (2003), a television personality's comments accusing a celebrity stylist of stealing, Albanese v. Menounos, 218 Cal. App. 4th 923, 934-37 (2013), a trustee's statement that a former employee was terminated for financial mismanagement, where the statement had no connection to any debate or controversy encouraging public participation, Du Charme v. Int'l Broth. of Elec. Workers, Local 45, 110 Cal. App. 4th 107, 119 (2003), and statements by a publisher that a token collector had stolen a valuable collector's item from the publisher, Weinberg v. Feisel, 110 Cal. App. 4th 1122 (2003).

In Rand Resources LLC v. City of Carson, 247 Cal. App. 4th 1080 (2016), review granted, 381 P.3d 229 (Cal. Sept. 21, 2016) (No. S235735), the California Supreme Court is finally poised to offer guidance that may begin to resolve these conflicts.

What's a Public Forum?

In addition to street-corner orations, the anti-SLAPP statute covers speech on the Internet. Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1366 (2010). However, the appellate courts split on whether newspapers and magazines should be considered public fora. Compare Nygard, 159 Cal. App. 4th at 1042 (public fora), and Albanese, 218 Cal. App. 4th 923 (public fora), with Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 37 Cal. App. 4th 855 (1995) (not public fora).

Mixed Claims

When a cause of action is "mixed"--based on both protected activity and unprotected activity--it is subject to an anti-SLAPP motion to dismiss unless the protected conduct is "merely incidental" to the unprotected conduct. Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 1551 (2010). In assessing whether protected conduct is incidental, courts "consider whether the allegations constitute a substantial or significant part of the factual allegations underlying the claim." Decambre v. Rady Children's Hosp.-San Diego, 235 Cal. App. 4th 1, 21-22 (2015) (ruling that protected conduct central to the factual allegations underlying the claim was not incidental).

Plaintiff's Burden

Once a defendant has shown that his or her conduct is statutorily protected activity, the court must then determine whether the plaintiff has shown a probability of success on the merits. In making its ruling the court must consider the pleadings, as well as supporting and opposing affidavits stating the facts underlying the liability or defense that is at issue. § 425.16(b)(1)-(2). The anti-SLAPP motion operates like a "motion for summary judgment in 'reverse.'" Coll. Hosp., Inc. v. Superior Court, 8 Cal. 4th 704, 718-19 (1994).

When a cause of action arises from mixed activities, a plaintiff must show the likelihood of success on only the part of the claim premised on protected activity. Baral v. Schnitt, 1 Cal. 5th 376, 396 (2016). And when the ruling on an anti-SLAPP motion in a "mixed" case, the court excises the allegations of protected conduct and does not necessarily dismiss the entire claim, assuming it can stand up based on the remaining allegations. Baral, 1 Cal. 5th at 396.

No SLAPP?

There are a number of areas in which a party explicitly may not bring an anti-SLAPP special motion to strike.

■ Enforcement actions: The statute does not apply to enforcement actions "brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor." § 425.16(d).

■ Criminal activity: The California Supreme Court has also imposed an "illegality exception": A defendant is precluded from filing an anti-SLAPP motion to strike if the underlying speech or petitioning activity is illegal as a matter of law. Flatley v. Mauro, 39 Cal. 4th 299, 320 (2006); Bergstein v. Stroock & Stroock & Lavan LLP, 236 Cal. App. 4th 793, 806 (2015) (holding that illegal conduct means violation of a criminal statute only). An activity is illegal as a matter of law when "the defendant concedes the illegality of his conduct or the evidence conclusively establishes the conduct complained of was illegal as a matter of law." Reed v. Gallagher, 248 Cal. App. 4th 841, 855 (2016). If there is any actual factual dispute regarding the unlawfulness of defendant's conduct, it must be raised at the second step of the anti-SLAPP analysis. Zucchet v. Galardi, 229 Cal. App. 4th 1466, 1478 (2014).

■ Public interest suits: The anti-SLAPP statute "does not apply to any action brought solely in the public interest or on behalf of the general public" if the plaintiff seeks relief tantamount to that available to the general public, if the action would enforce an important right affecting the public interest, if it would confer an important public benefit, and if private enforcement is necessary. § 425.17(b). Private enforcement is necessary if no public entity has attempted to enforce the rights named by plaintiffs, even if there is a possibility that a public entity might bring an action in the future. Inland Oversight Comm. v. County of San Bernardino, 239 Cal. App. 4th 671, 676 (2015). Note, however, that the public interest exception applies only when the entire action is brought in the public interest. Club Members for an Honest Election v. Sierra Club, 45 Cal. 4th 309, 312 (2008).

In assessing whether the public interest exception applies, courts look to the allegations of the complaint and the scope of relief sought. Cruz v. City of Culver City, 2 Cal. App. 5th 239, 249 (2016). The plaintiff does not need to provide affirmative evidence. San Diegans for Open Gov't v. Har Constr., Inc., 240 Cal. App. 4th 611, 628-29 (2015).

■ Commercial speech: The anti-SLAPP statute does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services and arising from any statement or conduct by that person. § 425.17(c). For this exception to apply, the statement or conduct must consist of factual representations about the commercial activity made for the purpose of engaging in commercial transactions, and the intended audience must be an actual or potential customer or regulatory agency. § 425.17(c)(1) & (2); Karnazes v. Ares, 244 Cal. App. 4th 344, 357 (2016) (ruling that a lawyer's statements made in context of representation were not statements for purpose of promoting commercial services). Conduct may be an affirmative representation as well as an omission or half-truth. JAMS, Inc. v. Superior Court, 1 Cal. App. 5th 984, 995 (2016). The plaintiff bears the burden of establishing the applicability of the commercial speech exemption. Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12 (2010).

Notwithstanding the general bar on anti-SLAPP cases involving commercial speech, motions in such cases may still be filed by publishers, editors, journalists, reporters, writers, and academics for actions in furtherance of their work; by those engaged in creating or advertising dramatic, literary, musical, political, or artistic works; and also by certain government-subsidized nonprofits. § 425.17(d).

SLAPPbacks

Special procedural rules apply to so-called SLAPPbacks, defined as "cause[s] of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike." § 425.18(b)(1). Different time limits apply for filing a SLAPPback motion; there is no discovery stay; a prevailing nonmoving party is not entitled to attorney fees; and the court's order is not immediately appealable. § 425.18(b)(1), (c)-(d). If a special motion to strike a SLAPPback claim is denied in full or in part, the aggrieved party must petition for a peremptory writ in the appropriate reviewing court within twenty days after service of the entry of the order denying relief. West v. Arent Fox LLP, 237 Cal. App. 4th 1065, 1071 (2015). Furthermore, the illegality exception in the SLAPPback statute does not cover only criminal violations. Bergstein, 236 Cal. App. 4th at 807-08.

Procedural Pitfalls

■ Time limits: Statutory anti-SLAPP deadlines for filing and scheduling a hearing are not jurisdictional in nature. An anti-SLAPP special motion to strike "may" be filed within sixty days of the service of the complaint without court permission, but the court has discretion to allow filing "at any later time upon terms it deems proper." § 425.16(f); Chitsazzadeh v. Kramer & Kaslow, 199 Cal. App. 4th 676, 682-85 (2011). This rule applies to both original and amended complaints, Lam v. Ngo, 91 Cal. App. 4th 832, 842-43 (2001), as well as to cross-complaints and petitions, § 425.16(h). Generally, the clerk must schedule a hearing within thirty days, § 425.16(f), but failure to do so does not require denial of the motion. Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1348-49 (2007).

However, there is a current split among courts of appeal on whether amended complaints reset the sixty day time limit to file a motion to strike. Compare Yu v. Signet Bank/Va., 103 Cal. App. 4th 298, 315 (2002) (ruling that anti-SLAPP motion to third amended complaint was timely although amended complaint did not add any new SLAPP allegations to the first complaint), with Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 6 Cal. App. 5th 1207, 1219 (2016) (holding that an amended complaint reopens the time period to file an anti-SLAPP motion only when the amended complaint pleads new causes of action not in a prior complaint or new allegations that make previously pleaded causes of action now subject to an anti-SLAPP motion).

■ Judicial Council: Any party who files an anti-SLAPP motion or opposition must promptly transmit to the Judicial Council a copy of the endorsed, filed caption page; a copy of any related notice of appeal or writ petition; and a conformed copy of any order relating to the motion. § 425.16(j)(1).

■ Discovery stay: Once a party files a notice of an anti-SLAPP motion, all discovery proceedings are stayed until notice of entry of the order ruling on the motion. The court, "on noticed motion and for good cause shown," may order that specified discovery be conducted notwithstanding this provision. § 425.16 (g).

■ Ability to amend: A plaintiff cannot file an amended complaint once an anti-SLAPP motion is filed. E.g., Salma v. Capon, 161 Cal.App.4th 1275, 1279-1280, 1293-1294 (2008); Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1068, 1074 (2001). But one outlier case has said that a party may amend the pleadings to conform to the proof submitted with an anti-SLAPP opposition. Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 863 (2009).

■ Immediate appeal: A trial court's ruling on an anti-SLAPP motion is directly appealable. § 425.16(i). An appeal from the denial of an anti-SLAPP motion automatically stays all further trial court proceedings on the causes of action affected by the motion. Varian Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 186 (2005). Review on appeal is de novo. Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 820 (2011). However, if the court concludes that the anti-SLAPP statute does not apply under section 425.17, there is no immediate right of appeal. § 425.17(e).

Attorney Fees

A prevailing defendant--normally the moving party under section 425.16--is entitled to attorney fees and costs as a matter of right. However, a prevailing plaintiff--normally the responding party--is entitled to recover fees only if the motion is "frivolous or is solely intended to cause unnecessary delay." § 425.16(c)(1). Courts have applied this asymmetrical scheme and upheld it against various constitutional challenges. Vargas v. City of Salinas, 200 Cal. App. 4th 1331, 1340-50 (2011).

Fees for a Partial Victory?

If the defendant successfully moves to dismiss some but not all claims, the court must assess the degree to which the defendant has prevailed and award fees in light of the purpose of the statute. Mann v. Quality Old Time Serv., Inc., 139 Cal. App. 4th 328 (2006) (ruling that a party successful in anti-SLAPP motion as to one of four causes of action was entitled to attorney fees]; Moran v. Endres, 135 Cal. App. 4th 952, 954-56 (2006) (deciding that defendants were not entitled to fees in "illusory victory" resulting in dismissal of only one of eleven counts). Additionally, the court should determine the amount of time spent on the successful claims, and "if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate." Malin v. Singer, 217 Cal. App. 4th 1283, 1305 (2013).

By following these guidelines, the anti-SLAPP statute can, and should, be used effectively to fulfill its mission of preventing retaliatory litigation and protecting free speech and petition rights in California. But keep your eyes peeled. A number of the cases cited above are currently pending before the California Supreme Court. Rulings to come may have a profound impact on the evolution of the state's anti-SLAPP jurisprudence.

Jeremy B. Rosen is a partner at Horvitz & Levy in Burbank, where Matthew C. Samet is an appellate fellow.