FAQ

Frequently Asked Questions: About SLAPP Suits

Find out what a SLAPP suit is, and how California's anti-SLAPP law can help you defeat a SLAPP suit brought against you.

The following is intended only as general information and not as legal advice. We hope this information may help you to recognize a SLAPP, so that you may seek appropriate legal advice.

What is a SLAPP Suit?

A "SLAPP" suit is a lawsuit brought against you because you exercised your right of free speech or your right to petition government, which are protected by the Constitutions of both the United States and the State of California.

The purpose of a SLAPP suit, in simplified terms, is either to discourage you from exercising those constitutional rights, or to punish you for having done so.

"SLAPP" is an acronym which stands for "Strategic Lawsuits Against Public Participation", a phrase coined to describe such lawsuits by University of Denver Professors Penelope Canan and George W. Pring.

How do you recognize a SLAPP suit?

Some SLAPP suits are fairly obvious. Examples are lawsuits brought against you for speaking out on a subject of public interest, for testifying against the SLAPP Plaintiff in a court case or other official hearing, or writing to a government agency complaining about actions of the SLAPP Plaintiff.

Other SLAPP suits can be much more difficult to recognize, especially since SLAPPs are often disguised as "business torts" or as other claims which may not appear, on the surface, to be obviously related to your exercise of your right of free speech or your right to petition government.

Even competent attorneys may have trouble recognizing SLAPPs in their more subtle forms, something made more difficult by the fact that this area of the law is still relatively young and is rapidly evolving. [In short -- don't try this at home, folks.]

Can a Cross-Complaint be a SLAPP Suit?

If I sue somebody, and that person files a Cross-Complaint against me, can that Cross-Complaint be a SLAPP suit?

Yes.

Can a Petition be a SLAPP Suit?

If somebody serves me with a legal paper which is called a "Petition", and I am named as a "Respondent", is it possible that the Petition is a SLAPP suit?

Yes. The same rules apply as though the court case had been started by a document called a "Complaint" in which you were named as a "Defendant".

What can be done about a SLAPP suit?

The underlying constitutional principles which protect you from SLAPP suits are available everywhere in the country to help you defeat a SLAPP suit brought against you. However, in states where no explicit anti-SLAPP statute has been adopted, there may be less awareness among attorneys and Judges as to how these principles should be applied to defeat a SLAPP suit against you. Also, in jurisdictions with no explicit anti-SLAPP statue, many procedural advantages are unavailable.

California and some other states have passed special anti-SLAPP suit laws, which are intended to help defeat SLAPP suits quickly.

In California, you have an absolute right to bring an anti-SLAPP motion within 60 days after you are served with a SLAPP Complaint, Cross-Complaint, or Petition.

The Court may agree to hear an anti-SLAPP motion after that 60 day period has passed, but to be sure you receive the advantages of the anti-SLAPP law, your motion should be brought within the 60 day period.
A considerable amount of time and work may be required to properly prepare an anti-SLAPP motion. You should consult your attorney as soon as possible after being served with a lawsuit which may be a SLAPP.

How does an anti-SLAPP motion work under California law?

Under California law, the person bringing the anti-SLAPP motion [the person who is the Defendant in a SLAPP suit] must file a motion with the Court which, in addition to meeting all usual legal requirements for motions, shows that the lawsuit is one which comes within the scope of the anti-SLAPP law, that is, that he or she was sued for exercising the constitutional right of free speech or the right to petition government.
Once the moving party has shown that this is so, and thus that the anti-SLAPP law applies, then a very heavy burden is imposed upon the person who filed the SLAPP suit [the SLAPP Plaintiff].

In brief, the SLAPP Plaintiff must show that he or she has a "probability of prevailing" on the claims asserted. This can be done only by producing, in opposition to the anti-SLAPP motion, admissible evidence which, if believed by the jury, would be enough to support a judgment in favor of the Plaintiff.
The requirement that the evidence be admissible is a very important one. It is often very difficult for a Plaintiff to produce, so early in the case, evidence which is legally "admissible" under the rules of evidence. Also, it is often difficult for a Plaintiff to produce, so early in the case, evidence on every single point which would be necessary to support a judgment in favor of the Plaintiff.

This burden of proving the Plaintiff's case by "admissible" evidence is especially heavy because once an anti-SLAPP motion is filed, all "discovery" [such as depositions] is stopped, unless and until special permission is obtained from the Judge permitting discovery to continue.

In addition to producing evidence to support the claims made against you, the SLAPP Plaintiff must also overcome your constitutional and related affirmative defenses.

Thus, as a practical matter, the SLAPP Plaintiff will have difficulty making the necessary showing unless he or she had all of the necessary evidence before filing the lawsuit. Usually, Plaintiffs do not have all of the evidence they need before filing the lawsuit.

What happens if I win the anti-SLAPP motion?

If you win the anti-SLAPP motion, the Judge strikes [dismisses] the "SLAPP" claims against you. If all of the claims against you are found to be SLAPPs, then the entire case against you is dismissed.
Also, the anti-SLAPP law says the Judge must order the losing SLAPP Plaintiff to pay your reasonable attorney's fees. [But see our FAQ regarding Awards of Attorney's Fees.]

What happens if I lose the anti-SLAPP motion?

If you lose the anti-SLAPP motion either because the Judge decides the anti-SLAPP law does not apply to the claims asserted against you, or because the Judge decides the Plaintiff had enough evidence to show a "probability of prevailing" in the action, then the lawsuit will continue as though the anti-SLAPP motion had never been made. The jury cannot be told that an anti-SLAPP motion was decided against you because of the Plaintiff's evidence.

Even if you lose, you cannot be required to pay the attorney's fees of the Plaintiff unless the Court decides that your anti-SLAPP motion was "frivolous or is solely intended to cause unnecessary delay".

Can the Judge's ruling on the anti-SLAPP motion be challenged?

Yes.

Under California's anti-SLAPP law, either party may immediately appeal from the Judge's order granting or denying an anti-SLAPP motion.

In 2003, however, the California Legislature added section 425.17 to the Code of Civil Procedure which excepts certain situations from the benefit of the anti-SLAPP law, including the benefit of immediate appeal. In cases which come within the exceptions created by section 425.17, any immediate relief would have to come through the prosecution of a petition for an extraordinary writ. With an extraordinary writ petition [unlike with an appeal], appellate courts have discretion whether or not to consider and decide the petition on the merits, and relatively few are granted.

May 27, 2005 | Permalink | Comments (0) | TrackBack (0)