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.
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.
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.]
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".
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.
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 Plaintiff wins the anti-SLAPP motion?
Can the Judge's ruling on the anti-SLAPP motion be challenged?
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 Law, renfrew law, SLAPP | Permalink | Comments (0) | TrackBack