FAQ

Frequently Asked Questions: About SLAPP Suits

Find out what a SLAPP suit is, and how California's anti-SLAPP law may operate to eliminate a SLAPP suit at an early stage of litigation.

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 a Defendant based on the Defendant's exercise of the right of free speech or the right to petition government, which are protected by the Constitutions of both the United States and the State of California.

Stated simply, the presumptive purpose of a SLAPP suit (even though the Plaintiff may not be thinking in such terms), is either to discourage the Defendant from exercising those constitutional rights, or to punish the Defendant 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 alleged "business torts" or as other claims which may not appear, on the surface, to be obviously related to exercise of the right of free speech or the 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 citizens from SLAPP suits are available everywhere in the country to help defeat a SLAPP suit. 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 can or should be applied to defeat a SLAPP suit. 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, a Defendant (with very few exceptions) has an absolute right to bring an anti-SLAPP motion within 60 days after being served with a SLAPP Complaint, Cross-Complaint, or Petition.

The Court may agree to hear an anti-SLAPP motion filed after that 60 day period has passed, but to be sure of receiving the advantages of the anti-SLAPP law, the 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. Even more time is ordinarily required to prepare a potentially successful opposition to an anti-SLAPP motion.

If you are the recipient of an anti-SLAPP motion, there is not a moment to be lost; the situation requires immediate and close attention. Indeed, the potential for an anti-SLAPP motion, and the means to defeat it if one is filed by the Defendant, should be the subject of careful consideration and preparation by every Plaintiff even before a Complaint is filed.

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. Also, once an anti-SLAPP motion is filed, the Plaintiff can no longer escape the anti-SLAPP process by amending the Complaint or even by dismissing the lawsuit.

In addition to producing evidence to support the claims made against made in the Complaint, the SLAPP Plaintiff must also overcome the Defendants constitutional 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. Often, Plaintiffs do not have all of the evidence they need before filing the lawsuit.

What happens if the Defendant wins the anti-SLAPP motion?

If the Defendant (who brought the anti-SLAPP motion) wins, then the Judge strikes [dismisses] the "SLAPP" claims contained in the Complaint. If all of the claims against the Defendant are found to be SLAPPs, then the entire case against the Defendant is dismissed.

Also, the anti-SLAPP law says the Judge must order a Plaintiff who loses an anti-SLAPP motion to pay the winning Defendant's reasonable attorney's fees. If the Defendant won as to only some (but not all) claims alleged in the Complaint, then the attorney fee award may be reduced because the Defendant was only partially successful. [See our FAQ regarding Awards of Attorney's Fees.]

What happens if the Plaintiff wins the anti-SLAPP motion?

If the Plaintiff wins (and the Defendant's anti-SLAPP motion is denied) either because the Judge decides the anti-SLAPP law does not apply to the claims asserted in the Complaint, or because the Judge decides the Plaintiff had enough evidence to show a "probability of prevailing" in the action, then the lawsuit as to surviving claims will continue as though the anti-SLAPP motion had never been made. The jury cannot be told that the Plaintiff won the anti-SLAPP motion.

Even if the Plaintiff obtains a complete win (and the Defendant's anti-SLAPP motion is denied as to all of the claims in the Complaint), the Plaintiff usually will not be awarded attorney's fees, because fees are awarded to a winning Plaintiff only if the Court decides that the Defendant's anti-SLAPP motion was "frivolous or is solely intended to cause unnecessary delay".
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Can the Judge's ruling on the anti-SLAPP motion be challenged?

Yes.

Under California's anti-SLAPP law, usually 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 in , , | Permalink | Comments (0) | TrackBack