“Code of Civil Procedure §§ 425.16 et seq.—California’s “anti-SLAPP” statute—is the frontline defense against any action involving petitioning or free speech. In 1992, the California Legislature enacted Civ. Proc. Code § 425.16 to address a “disturbing increase in litigation designed to infringe” free speech and petitioning activities through the filing of a SLAPP (Civ. Proc. Code § 425.16, subd. (a)), an acronym for a “strategic lawsuit against public participation.” The anti-SLAPP statute is available in state court and against state claims filed in federal court. It was enacted to “nip SLAPP litigation in the bud” (Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036, 1042, 61 Cal. Rptr. 2d 58, 25 Media L. Rep. (BNA) 1594 (1st Dist. 1997)) through a very early and very fast summary judgment-like procedure that allows defendants (including cross-defendants) to file a “special motion to strike” to dismiss entire complaints (or specific causes of action) or mere portions of a cause of action, making the plaintiff respond before he or she may have an opportunity to conduct discovery to avoid the costs and delay that chill the exercise of constitutionally protected rights. As one appellate court put it, “[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” (People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317, 9 Cal. Rptr. 3d 844 (4th Dist. 2004)).”
“Once a defendant files a special motion to strike in state court, the following happens: An automatic stay of discovery; absent court permission, no discovery is permitted (Civ. Proc. Code § 425.16, subd. (g)); Amendments to the complaint are not permitted, and the plaintiff cannot dismiss the complaint without facing mandatory attorney’s fees; The court hears the motion within 30 days or as soon as docket conditions permit (Civ. Proc. Code § 425.16, subd. (f)); If the defendant shows that the plaintiff’s action arises from the defendant’s petitioning or free speech activities, the plaintiff must prove he or she has pleaded and presented a legally sufficient claim supported by admissible evidence demonstrating that “there is a probability” that the plaintiff will prevail on the action (Civ. Proc. Code § 425.16, subd. (b)(1)); If the motion is granted, then the action is dismissed and the defendant recovers his or her attorney’s fees and costs (Civ. Proc. Code § 425.16, subd. (c)(1)); If the motion is denied, the defendant has an automatic right of appeal and activity in the trial court is stayed pending the appeal (Civ. Proc. Code § 425.16, subd. (i)).”
““Resolution of an anti-SLAPP Motion requires a court to engage in a two-step process.” (Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 3 Cal. Rptr. 3d 636, 74 P.3d 737 (2003).) In the first step or prong, the defendant must show that the conduct underlying the plaintiff’s cause of action or portions of the cause of action that are asserted as grounds for relief—arises from the defendant’s constitutional rights of free speech or petition. (Civ. Code § 425.16, subd. (b)(1).); Baral v. Schnitt, 1 Cal. 5th 376, 395, 205 Cal. Rptr. 3d 475 (Cal. 2016); Bonni v. St. Joseph Health System, 11 Cal. 5th 995, 1009–1012, 281 Cal. Rptr. 3d 678, 491 P.3d 1058 (Cal. 2021) (where a single cause of action alleges multiple factual bases, following Baral, a court should analyze each claim for relief—each act or set of acts supplying a basis for relief—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion).”
“In prong one, “the focus of the statute is not the form of plaintiff’s cause of action, but the defendant’s activity that gives rise to the asserted liability.” (Midland Pacific Bldg. Corp. v. King, 157 Cal. App. 4th 264, 272, 68 Cal. Rptr. 3d 499 (2d Dist. 2007).) The statute identifies four categories of protected petitioning and free speech activities. (Civ. Proc. Code § 425.16, subd. (e)(1) to (4)). The law expressly provides that it “shall be construed broadly [(Civ. Proc. Code § 425.16, subd. (a))] to encourage participation in free speech and petition activities.” (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15, 22, 45 Cal. Rptr. 3d 633 (3d Dist. 2006).) A large body of appellate case law has developed concerning conduct by a defendant that is within prong one and protected by the anti-SLAPP statute. Courts have dismissed a wide variety of causes of action using the statute. If the defendant cannot satisfy prong one, the court will deny the motion without proceeding to prong two.”
“In the second prong or step, the burden shifts to the plaintiff to prove that he or she has a legally sufficient claim and to prove with “admissible evidence” a “probability” that the plaintiff will prevail on the claim. This is similar to a summary judgment standard in which the plaintiff’s claim (or entire complaint) must be “legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if plaintiff’s evidence is credited.” (Navellier v. Sletten, 29 Cal. 4th 82, 88–89, 124 Cal. Rptr. 2d 530, 52 P.3d 703 (2002).) Because the plaintiff must demonstrate the substantive merits of his or her claim in prong two, a broad swath of substantive law (and evidence) is analyzed by courts in prong two. If the plaintiff cannot show a probability of prevailing, then the court will grant the special motion to strike and dismiss the plaintiff’s action (either the entire lawsuit, individual causes of action, or portions of causes of action involving protected activity that are asserted as grounds for relief). (Civ. Proc. Code § 425.16, subd. (b)(1).) The defendant is entitled to recover their attorney’s fees and costs incurred in connection with the motion in the trial and appellate courts. (Civ. Proc. Code § 425.16, subd. (c)(1).) If the court denies the special motion to strike—either because the anti-SLAPP statute was not triggered or because the plaintiff showed a probability of prevailing—then the defendant may immediately appeal. (Civ. Proc. Code § 425.16, subd. (i).) A plaintiff may recover their attorney’s fees and costs only if the filing of the anti-SLAPP motion was frivolous. (Civ. Proc. Code § 425.16, subd. (f).)”
“A special motion to strike is not available against public enforcement actions brought by a public prosecutor (Civ. Proc. Code § 425.16, subd. (d)), actions brought “solely” in the public interest (Civ. Proc. Code § 425.17, subd. (b)), and in certain commercial speech cases. (Civ. Proc. Code § 425.17, subd. (c).) Additionally, a movant may not use the anti-SLAPP statute to protect petitioning or speech activity that is “illegal as a matter of law—meaning criminal activity, not merely violative of a statute or common law.” (Flatley v. Mauro, 39 Cal. 4th 299, 320, 46 Cal. Rptr. 3d 606, 139 P.3d 2 (2006).) If the court determines that an action falls within Civ. Proc. Code § 425.16 (d) or any of the exemptions in Civ. Proc. Code § 425.17, then the defendant has no automatic right of appeal. (Civ. Proc. Code § 425.17, subd. (e).)”
[Anti-SLAPP Litigation [certain citations omitted]]
