The “special motion to strike,” the procedure created by the California anti-SLAPP statute, Cal. Code of Civil Procedure § 425.16, has evolved far from its paradigm application of the large corporate interest trying to squelch the speech of the individual activist by saddling him with the costs of onerous litigation. The anti-SLAPP procedure is now such a commonly used tool that the possibility of an anti-SLAPP motion should be on every litigator’s early checklist when considering how to defend a new lawsuit in California’s state and federal courts. On the flip side, when drafting a complaint or cross-complaint, an attorney must consider whether the complaint will be met with an anti-SLAPP motion or risk exposing the client to liability for the opponent's attorneys' fees.

In the first 9 months of 2012 alone, the California Court of Appeal has issued over 150 SLAPP decisions, applying the statute to a wide range of causes of action including slander of title, cancellation of cloud on title, breach of contract, wrongful termination, fraud, civil conspiracy, breach of fiduciary duty, the Uniform Fraudulent Transfer Act, malicious prosecution, shareholders derivative suits, defamation, and invasion of privacy, among many others. Although anti-SLAPP statutes are now found in 28 states, including Arizona, Georgia, Illinois, Missouri, New York and Texas, as well as the District of Columbia, the California statute is noted for its breadth of coverage. And the anti-SLAPP statute is not just a state court tool: it can also be used in federal court, although there are a few differences in its application.

Because of the law’s applicability to so many different situations and causes of action, the anti-SLAPP procedure cuts across all of Bryan Cave’s litigation practice areas. It is thus important for all attorneys to be aware of the statute’s benefits and requirements.

The California anti-SLAPP statute grants a defendant a right to file a special motion to strike within 60 days of the filing of the complaint, and grants the court the discretion to permit a special motion to strike to be filed at any time thereafter. It applies to any cause of action “arising from any act of that person in furtherance of the person’s right of petition or free speech” in connection with a “public issue,” a standard that is broadly defined. The special motion to strike has several advantages over a demurrer or a 12(b) motion to dismiss:

  • The filing of a special motion to strike in state court stays all discovery pending the resolution of the special motion. The stay may be lifted only by way of noticed motion
  • A special motion to strike may be based on a defect in the pleading of the cause of action, like a demurrer or a motion to dismiss. But it may also be used to put the plaintiff to the burden of producing evidence, right at the outset of the case, to substantiate his or her claims. The plaintiff cannot merely rely on the allegations in the complaint.
  • A successful special motion to strike usually results in a dismissal with prejudice. A complaint generally may not be amended once the special motion to strike is filed.
  • A defendant who prevails on a special motion to strike is entitled to a mandatory award of attorneys’ fees.
  • The denial of a special motion to strike filed in state court is immediately appealable.

The statute is increasingly relevant in diverse practice areas, such as in real estate and financial institutions litigation. This is illustrated by the recent decision in MF Farming Co. v. Couch Distributing Co., 207 Cal. App. 4th 180 (2012), which involved a dispute between a landowner and the long-time holder of an easement across the landowner’s property. The complaint pled causes of action for slander of title, cancellation of cloud on title, and injunctive relief. The trial court found, and the Court of Appeal affirmed, that the anti-SLAPP statute applied. The slander of title action was based on the defendant’s alleged acts of publishing false maps and plot plans that cast doubt on plaintiff’s title. The cancellation of cloud action was based on the defendant’s alleged acts of publishing several documents that falsely indicated that it owned the property at issue. All such publications were done as part of the process of applying for building and development permits. The court found that each cause of action was subject to the anti-SLAPP statute because each was based on “statements made in connection with an issue under consideration or review by any official proceeding authorized by law.” Because the anti-SLAPP statute applied, the plaintiff was required to produce evidence to demonstrate that it had a reasonable probability of prevailing on each cause of action, a burden it could not carry.

Because they frequently litigate defamation and related claims, members of Bryan Cave's Media and First Amendment team have extensive experience with litigation using the anti-SLAPP statute and are available to assist other practice groups in defending any cause of action that may fall within the purview of the statute, providing a level of experience not found in most law firms. For example, team members Rachel Matteo-Boehm and Leila Knox recently obtained a dismissal of a malicious prosecution claim for one of the firm's non-profit foundation clients. David Greene was part of the Bryan Cave team that successfully obtained a dismissal of five causes of action brought against one of the firm’s municipal clients, after it was sued for breach of contract, breach of the implied covenant of good faith and fair dealing, invasion of privacy, and professional negligence. And Roger Myers and Leila Knox successfully used the anti-SLAPP statute in federal court to obtain the dismissal of three state law causes of action (for fraud, unjust enrichment and unfair competition) that were pendant to a copyright claim. Team members also have experience working with SLAPP laws in other states, most recently Texas’ newly-enacted anti-SLAPP law (which, like California’s law, applies to a broad array of claims).