BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1158 A
Assembly Member Lieber B
As Amended August 15, 2005
Hearing Date: August 16, 2005 1
Code of Civil Procedure 1
GWW:cjt 5
8
SUBJECT
Anti-SLAPP (Strategic Lawsuit Against Public Participation)
Law:
-Anti-SLAPP motions and SLAPPback lawsuits-
DESCRIPTION
As amended August 15, this bill would enact the following
rules with respect to anti-SLAPP motions and SLAPPback
lawsuits (defined as a cause of action for malicious
prosecution or abuse of process arising from the filing of
a prior cause of action that was dismissed as a SLAPP
lawsuit pursuant to an anti-SLAPP motion).
For an anti-SLAPP motion (Code of Civil Procedure Section
425.16 special motion to strike):
* The court's denial of an anti-SLAPP motion would be
inadmissible for any purpose in any subsequent action and
would not affect any burden of proof or degree of proof
otherwise applicable. (Under current law, these rules
are applied to bar any adverse collateral effect of that
determination at any later stage of the case.)
* The motion would be scheduled by the court clerk for
hearing within 30 days after the service of the motion
unless the docket conditions require a later hearing.
(Current law requires that the hearing be noticed, but
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not necessarily scheduled.)
This bill would also enact Code of Civil Procedure (CCP)
Section 425.18 to govern SLAPPback lawsuits. While it
would permit an anti-SLAPP motion to be filed in a
SLAPPback action, the bill would establish the following:
* Legislative findings that a SLAPPback action is
distinguishable in character and origin from the ordinary
malicious prosecution action, and that a SLAPPback should
be treated differently from the ordinary malicious
prosecution action because a SLAPPback is consistent with
the Legislature's intent to protect the valid exercise of
the constitutional rights of free speech and petition by
its deterrent effect on SLAPP litigation and by its
restoration of public confidence in participatory
democracy.
* There would be no right to mandatory attorney's fees for
a prevailing defendant filing an anti-SLAPP motion in a
SLAPPback action. (Proposed Section 425.18(c).)
* There would be no automatic right to appeal the denial of
the anti-SLAPP motion, but an expedited writ process is
provided. (Proposed Section 425.18(c) and (g).)
* There would be no limitation on discovery upon the filing
of an anti-SLAPP motion. Further, a party opposing the
motion to strike a SLAPPback may file an ex parte
application for a continuance to obtain necessary
discovery, which shall be granted if it appears to the
court that facts essential to justify opposition to the
motion may exist. (Proposed Section 425.18(c) and (e).)
* Defendants would have 120 days after service of the
SLAPPback action to file the anti-SLAPP motion, (instead
of 60 days). Any filing of the anti-SLAPP motion after
120 days and before six months would be at the court's
discretion, and for any delayed filing beyond six months
after service, the court must find that the delayed
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filing was an extraordinary case and circumstance due to
no fault of the defendant. (Proposed Section 425.18(d).)
* The filing of a frivolous anti-SLAPP motion in a
SLAPPback action would be sanctioned by an award of
reasonable attorney's fees to the plaintiff. (Proposed
Section 425.18(f) is taken from the existing anti-SLAPP
law.)
* A special motion to strike may not be filed in a
SLAPPback action by a party whose filing or maintenance
of the prior cause of action from which the SLAPPback
arises was illegal as a matter of law. (Proposed Section
425.18(h).)
* The SLAPPback provisions would not apply to any SLAPPback
action filed by a public entity. (Proposed Section
425.18(1).)
* The bill would make specified findings to abrogate or
overrule specified court of appeals decisions. (Proposed
Section 3 of the bill.)
The bill would take effect immediately as an urgency
measure.
(This analysis reflects a technical author's amendments to
be offered in committee.)
BACKGROUND
Strategic Lawsuits Against Public Participation (SLAPP)
suits were first identified by University of Denver Law
School Professor George Pring and University of Denver
Sociology Professor Penelope Canan in their seminal
article, Strategic Lawsuits Against Public Participation
(1988) 35 Social Problems 506, as "civil lawsuits ... that
are aimed at preventing citizens from exercising their
political rights or punishing those who have done so."
While SLAPP suits "masquerade as ordinary lawsuits" such as
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defamation and interference with prospective economic
advantage, they are generally meritless suits brought
primarily to chill the exercise of free speech or petition
rights by the threat of severe economic sanctions against
the defendant, and not to vindicate a legally cognizable
right. (Pring and Canan, SLAPPS: Getting Sued for Speaking
Out, (Temple University Press, 1996).)
In 1992, SB 1264 (Lockyer), Ch. 726, Stats. of 1992,
enacted CCP Section 425.16 to provide a "special motion to
strike" for use by defendants in SLAPP lawsuits to obtain
an early judicial dismissal of a meritless claim arising
from the person's valid exercise of his or her
constitutional rights of petition and free speech in
connection with a public issue. In passing the anti-SLAPP
law, the Legislature found that "there has been a
disturbing increase in lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom
of speech and petition for the redress of grievances . . .
that it is in the public interest to encourage continued
participation in matters of public significance, and that
this participation should not be chilled through abuse of
the judicial process." (Italics added.)
In 1997, this preamble of the anti-SLAPP law was amended to
require that Section 425.16 be broadly construed. (SB 1296
(Lockyer), Ch. 271, Stats. of 1997.)
In 2003, responding to concerns that the statute was being
interpreted too broadly and to concerns about disturbing
abuses of the law which undermined its intent, the
Legislature in SB 515 (Kuehl), Ch. 338, Stats. 2003,
provided that certain actions were not subject to the
special motion to strike, such as specified actions brought
solely in the public interest or on behalf of the general
public and certain actions based on the defendant's
commercial speech or conduct.
Since becoming law in 1993, there have been at least 174
reported appellate opinions construing Section 425.16,
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including 23 federal appellate decisions and 10 California
Supreme Court decisions, providing 94 pages of annotations
to the West codes, an addition of 61 pages in the last
three years alone. While the Supreme Court's anti-SLAPP
jurisprudence has, in its words, "scrupulously honored" the
Legislature's intent "as exhibited in the plain meaning of
the actual words of the law," (Jarrow Formulas, Inc. v.
LaMarche (2003) 31. Cal. 4th 728), three members of the
Supreme Court have also opined, "?the majority appears
willing to consider any suit a SLAPP, based largely on when
it was filed?. The cure has become the disease-SLAPP
motions are now just the latest form of litigation abuse."
(Justice Brown, dissenting (with Justices Baxter and Chin
concurring), Navellier v. Sletten (2002) 29 Cal.4th 82,
96.)
CHANGES TO EXISTING LAW
Existing law provides that a cause of action against a
person arising from any act of that person in furtherance
of the person's right of petition or free speech under the
United States or California Constitution, as specified, is
subject to a special SLAPP motion to strike, unless the
court determines there is a probability that the plaintiff
will prevail on the claim. This SLAPP motion is not
applicable to any enforcement action brought in the name of
the people of the State of California by the Attorney
General, district attorney, or city attorney, acting as a
public prosecutor. (Code of Civil Procedure Section
425.16. All references are to this code unless stated
otherwise.)
Existing law provides that certain actions are not subject
to a special motion to strike. They are: a) an action
brought solely in the public interest or on behalf of the
general public when specified conditions are met; and b) a
cause of action brought against a person primarily engaged
in the business of selling or leasing goods or services,
arising from any statement or conduct of a commercial
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nature or purpose. (Section 425.17.)
This bill would enact additional provisions with respect to
anti-SLAPP motions and SLAPPback lawsuits, as detailed
above in DESCRIPTION.
COMMENT
1. Stated need to help SLAPP victims who wish to vindicate
their rights
The sponsor, the California Anti-SLAPP Project (CASP),
and proponents assert that victims of SLAPP lawsuits
suffer great damages as a result of being SLAPPed, and
that the costs and attorneys' fees recoverable under the
anti-SLAPP law are only a small part of the overall
damages suffered by a SLAPP victim. CASP points out that
some victim's lives have been literally destroyed by
having to defend against a SLAPP. Some have lost or had
to mortgage their homes to pay the upfront defense costs,
and many have suffered severe emotional distress, adverse
health consequences, and strained family relationships
caused by SLAPP-related stress. Writes CASP:
"Frequently, much more significant are damages for
emotional distress and punitive damages, arising from
violations of the defendant's constitutional rights.
Attorneys' fees and costs will not compensate."
This bill will enhance the ability of SLAPP victims to
recover damages for being SLAPPed in two major ways.
First, it would narrowly abrogate a part of the Supreme
Court decision in Wilson v. Parker, Covert & Childester,
(2002) 28 Cal.4th 811, in which the Court narrowly
construed legislative intent and declined to bar the
denial of an anti-SLAPP motion from having an adverse
effect in a later action. That ruling effectively bars
many SLAPP victims from filing a SLAPPback action even
though that prior denial of the motion by the trial court
was overturned on appeal. The proposed limited
abrogation would allow those SLAPP victims to file a
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SLAPPback claim. (See Comment 3.) A second major
provision would enact new Section 425.18 to govern
SLAPPback actions to specifically ameliorate some of the
potential harshness of the anti-SLAPP law if applied to a
SLAPPback action. (See Comments 2, 4, and 5.)
2. Provisions to protect SLAPPback lawsuit from harsh
application of anti-SLAPP law
While SLAPP victims may now file a malicious prosecution
to recover their damages, CASP asserts that the available
use of the anti-SLAPP motion in a SLAPPback lawsuit
serves as a real chill on the willingness of many SLAPP
victims to proceed. If the anti-SLAPP motion succeeds,
the SLAPP victim bringing the SLAPPback lawsuit would be
revictimized by having to pay the prevailing defendant's
attorney's fees. In some cases, the fees can be $100,000
to $200,000 or more; this threat of a huge attorney's fee
assessment is a major deterrent to those who might
otherwise wish to vindicate their rights through a
SLAPPback lawsuit.
The revised AB 1158 would eliminate that threat of
liability for attorney's fees from a successful
anti-SLAPP motion in a SLAPPback action by making the
mandatory attorney's fee provision inapplicable to
SLAPPback cases. This provision would also operationally
eliminate another risk to SLAPPback filers in the
anti-SLAPP law that provides for a mandatory fees award
even if the SLAPP lawsuit is dismissed after the SLAPP
victim files an anti-SLAPP motion to strike. (Pfeiffer
Venice Properties v. Bernard (2002) 101 Cal.App.4th 211.)
Thus, if a SLAPP victim files a SLAPPback and is served
with a special motion to strike, the SLAPPback filer may
elect to dismiss without fear of a mandatory attorney's
fees assessment. This would give the SLAPP
victim/SLAPPback filer and his or her counsel an
opportunity to consider whether to drop the case without
having to potentially pay the defendant's attorney's fees
or proceed with the SLAPPback litigation and face a
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potential large fees award if the anti-SLAPP motion
prevails. As noted above, this option is not now
available under the anti-SLAPP law to a SLAPP filer.
Other provisions of the anti-SLAPP law are also mitigated
or eliminated in a SLAPPback action so that the SLAPP
victim could more easily pursue his or her case without
undue encumbrance from the anti-SLAPP law. For example,
unlike the anti-SLAPP law, a SLAPPback defendant losing a
special motion to strike would not have the right to
immediate appeal, and would instead be able to file a
peremptory writ which may be granted at the appellate
court's discretion. Proponents argue that permitting an
immediate appeal in a SLAPPback case will usually enable
the well-heeled SLAPP plaintiff/now SLAPPback defendant
to again punish the SLAPP victim, economically and
emotionally, through extended appeals of a meritless
motion. As another example, the bar of discovery in
anti-SLAPP motions would not apply in SLAPPback claims,
thereby allowing the SLAPPback plaintiff the opportunity
to obtain evidence to support his or her claim and to
defeat an anti-SLAPP motion. In fact, another provision
would expressly allow a SLAPPback plaintiff to obtain
additional time for discovery pending the anti-SLAPP
motion if it appears to the court that facts essential to
the opposition to the motion may exist. This is
appropriate, argue proponents, so that the anti-SLAPP law
does not unfairly deprive the SLAPP victim of a valid
claim just because he or she has not had sufficient time
to obtain evidence of the defendant's malice, a key
element for a malicious prosecution claim.
Further, AB 1158's proposed SLAPPback provisions would
restrict the delayed filing of an anti-SLAPP motion that
could unfairly surprise a SLAPPback plaintiff by limiting
the court's discretion to allow a delayed filing more
than six months after the service of the complaint to
extraordinary cases and circumstances where the defendant
shows that the delay was not the defendant's fault and
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the court makes a written finding to that effect. Under
the existing law, SLAPPback attorneys assert that they
have been served with an anti-SLAPP motion months after
the deadline and there appears to be no reason for the
extraordinary delay except to allow the defendant to run
up attorneys' fees.
To prevent the filing of an anti-SLAPP motion that is
frivolous or solely intended to cause delay, the bill
would require payment of the prevailing SLAPPback
plaintiff's attorneys' fees and costs upon that motion's
denial. This provision is taken from the existing
anti-SLAPP law.
Further, the bill would bar a special motion to strike
from being filed in a SLAPPback action by a party whose
filing or maintenance of the prior cause of action from
which the SLAPPback arises was illegal as a matter of law
(and by definition, be dismissed pursuant to an
anti-SLAPP motion). (See Comment 4, below.) These and
two other key ameliorative provisions, the legislative
findings regarding SLAPPback actions (proposed Section
3(a) of the bill) and the narrow abrogation of Wilson's
reading of legislative intent, would provide significant
protections to SLAPP victims who decide to file a
SLAPPback lawsuit. (See Comments 3 and 5, below.)
3. Narrow abrogation of Wilson's interpretation of
legislative intent
CCP Section 425.16(b)(3) [henceforth "(b)(3)"] currently
provides that "[i]f the court determines that the
plaintiff has established a probability that he or she
will prevail on the claim, neither that determination nor
the fact of that determination shall be admissible in
evidence in any later stage of the case, and no burden of
proof or degree of proof otherwise applicable shall be
affected by that determination."
In Wilson v. Parker, Covert & Childester, (2002) 28
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Cal.4th 811, the Court was asked to construe (b)(3) to
bar a trial court's denial of an anti-SLAPP motion from
precluding the SLAPP victim's bringing of a SLAPPback
lawsuit when the victim eventually prevailed on appeal on
that motion or prevailed in a later trial. The Court
declined and instead ruled that a denial of the
anti-SLAAP motion (on the ground that the plaintiffs had
established the requisite probability of success) gives a
SLAPP filer a probable cause defense in any subsequent
malicious prosecution SLAPPback claim. Since one of the
critical elements of an action for malicious prosecution
is the absence of probable cause for bringing the prior
action (Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal. 3d 863, 874), that determination is fatal to many
SLAPP victims who nonetheless prevailed on appeal or at
trial, but cannot file a SLAPPback action to recover
compensatory damages because of that Wilson ruling.
While the Court may have been correct in its strict,
literal interpretation of the statute, the Court in this
instance arguably failed to heed the Legislature's
direction to broadly construe the statute to further the
legislative intent that the anti-SLAPP procedures be
employed to quickly end abusive litigation against
protected speech and activity. The clear and
indisputable intent of (b)(3) is to not penalize the
SLAPP victim for filing a special motion to end the case
early, before any real discovery had been done and where
the court does not weigh the evidence but simply looks to
see if the plaintiff can make a showing of prima facie
minimal case. The Court's view at page 826 that the
minor effect of its ruling to force a SLAPP victim to
choose between filing an anti-SLAPP at the risk of
jeopardizing a subsequent malicious prosecution claim or
foregoing that special motion to preserve the claim, does
not comport with the clear intent of (b)(3) to not
penalize the SLAPP victim for filing and losing an
anti-SLAPP motion.
This bill would correct that situation by amending (b)(3)
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to provide that the denial of the motion has no impact at
any later stage of the case or in any subsequent action.
This approach avoids the problems posed by the original
proposal in AB 1158 in Section 425.16(b)(4) to overturn
Wilson and Roberts v. Sentry Life Insurance, (1999) 76
Cal. App. 4th 375, in their entirety, which would have
affected the law of summary judgment as well as malicious
prosecution. This approach also removes the California
Defense Counsel's (CDC) opposition, which had strongly
opposed any change in the Wilson-Roberts line of cases.
This approach also addresses the Civil Justice
Association of California's (CJAC) specific objection to
the (b)(4) provision, and CJAC has removed its
opposition.
4. A party filing a prior case that was illegal as a matter
of law and that is the basis of a SLAPPback may not file
an anti-SLAPP motion in the SLAPPback
In Bill Johnson's Restaurants, Inc. v. National Labor
Relations Board, 461 U.S. 731 (1983), the U.S. Supreme
Court held that "baseless litigation is not immunized by
the First Amendment right to petition."
AB 1158's proposed Section 425.18(h), on page 7, line 7,
adopts this principle in the SLAPPback context and
provides that "a special motion to strike may not be
filed against a SLAPPback by a party whose filing or
maintenance of the prior cause of action from which the
SLAPPback arises was illegal as a matter of law." (A
SLAPPback, by definition, is a malicious prosecution or
abuse of process action arising from the filing or
maintenance of a prior cause of action that has been
dismissed pursuant to a special motion to strike under
Section 425.16.)
Thus, where a person whose prior SLAPP lawsuit was
illegal as a matter of law, as shown by being thrown out
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on a special motion to strike, and the SLAPP victim files
a subsequent malicious prosecution action, that bad actor
cannot use the anti-SLAPP law to defend against the
lawsuit or to vex and harass the SLAPP victim.
This concept in part originates from Attorney General
Bill Lockyer's amicus curiae brief in Flatley v. Mauro,
pending before the California Supreme Court (S128429,
review granted Dec. 15, 2004), in which the Court is
being asked to consider whether a defendant engaged in
illegal and even criminal speech behavior may use the
anti-SLAPP procedures in a lawsuit against him for civil
extortion and intentional infliction of emotional
distress. This bill, as it pertains only to SLAPPbacks,
does not directly affect that pending case although the
Court may, if it wishes, take judicial notice of the
Legislature's treatment of conduct illegal as a matter of
law.
5. Findings regarding SLAPPbacks and its deterrent effect on
SLAPPS
The proposed findings in Section 2, under proposed
Section 425.18(a), are intended to sensitize the courts
to the different character and origin of SLAPPback
lawsuits and its value in protecting against SLAPP
litigation as a deterrent. The proposed findings follow
its predecessor statutes, Sections 425.16 and 425.17, in
stating legislative intent to guide the court's
interpretation of the statute.
6. Some proponents prefer the broader Assembly version
passed 74 - 0, prior to recordation of opposition from
CJAC and CDC
As amended August 15, AB 1158 is narrower than the
version approved 74 - 0 by the Assembly. That bill would
have overturned Jarrow Formulas Inc. v. LaMarche (2003)
31 Cal. 4th 728 and categorically barred an anti-SLAPP
motion from being filed in a malicious prosecution
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SLAPPback; would have overturned a Supreme Court and a
court of appeal case holding that the denial of an
anti-SLAPP motion (Wilson v. Parker, Covert & Childester,
supra) or a defense summary judgment motion (Roberts v.
Sentry Life Insurance (1999) 76 Cal. App. 4th 375) shows
probable cause for the party to file the action, thus
providing a defense to a malicious prosecution action;
and would have enacted legislative findings deeming any
SLAPPback action (not just limited to malicious
prosecution or abuse of process claims) to be a favored
action. Some proponents of AB 1158 strongly favor the
broader version, contending that the revised proposal has
been watered down until it has no value.
In the Assembly version approved 74 - 0, both the Civil
Justice Association of California (CJAC) and the
California Defense Counsel (CDC) had "opposed" positions.
Their recorded positions came after the Assembly vote.
The Consumer Attorneys of California (CAOC) also had
concerns which they were addressing with the author's
office. The revised AB 1158 removes the opposition of
the CDC and CJAC; in fact, CDC now supports the bill.
CAOC reports that its concerns have been addressed.
a) Categorical exemption for SLAPPbacks from
anti-SLAPP motion
As passed by the Assembly, AB 1158 proposed to make
the anti-SLAPP motion inapplicable in any SLAPPback
action (any malicious prosecution claim or any other
cause of action arising from the filing or maintenance
of a prior cause that has been dismissed pursuant to
the granting of an anti-SLAPP motion). Proponents of
the broader exemption argued that is unfair and
illogical to use the anti-SLAPP statute to protect a
SLAPPer. Some proponents also argued that this
provision was necessary to encourage contingency fee
attorneys to accept SLAPPback cases; otherwise, the
possibility of having to defend against an anti-SLAPP
motion would deter these attorneys from taking the
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cases. Another proponent argues that it is unfair to
require a person filing a malicious prosecution action
to spend tens of thousands, if not over a hundred
thousand dollars, to defend against an anti-SLAPP
motion filed against a SLAPPback action. This
proponent of the broader exemption argues that the
Supreme Court's decision in Jarrow Formulas v.
LaMarche has effectively killed the tort of malicious
prosecution by allowing anti-SLAPP motions to be filed
in such claims as few litigants can afford the costs
to defend against the anti-SLAPP motion.
Proponents of the broader exemption also argued that
Professor Pring had recommended this provision to the
Judicial Council in his 1999 report to the Legislature
on SLAPPs, asserting that the change would prevent the
law from creating a "merry-go-round of abuse." In
response, the Judicial Council declined to adopt the
recommendation as being unnecessary because the judge
hearing the SLAPPback case can determine whether the
special motion is meritorious or not. Implicitly, the
Council appears to recognize that a SLAPPback claim
may itself be a SLAPP, which should be dismissed
pursuant to an anti-SLAPP motion.
Committee staff and others, such as the CAOC and CDC,
had significant reservations about the categorical
exemption. Since the California Supreme Court's
decision in Briggs v. Eden Council for Hope and
Opportunity (1999) 19 Cal.4th 1106, where the Court
followed the Legislature's direction and broadly
construed the anti-SLAPP law to protect any statement
made in any legislative, judicial or other official
proceeding under the anti-SLAPP law, even if the
statement did not concern a public issue or an issue
of public interest, anti-SLAPP motions are apparently
the favored motion of business and "little guy"
defendants alike. Indeed, as noted earlier, three
members of the Supreme Court have opined, "?the
majority appears willing to consider any suit a SLAPP,
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based largely on when it was filed?. The cure has
become the disease-SLAPP motions are now just the
latest form of litigation abuse." (Justice Brown,
dissenting (with Justices Baxter and Chin concurring),
Navellier v. Sletten (2002) 29 Cal.4th 82, 96.)
Thus, unforeseeable court rulings that broadly
construe the anti-SLAPP law could result in cases of
first impression where the "little-guy" plaintiff was
truly not engaging in SLAPP litigation, but is
nonetheless found to be a SLAPPer. That person would
be precluded from using the anti-SLAPP law to defend
him or herself against the follow-up SLAPPback SLAPP
suit. As the Supreme Court itself noted in Jarrow
Formulas at page 739: "spurious malicious prosecution
suits may, like others, 'chill the valid exercise of
the constitutional rights of freedom of speech and
petition for the redress of grievances.' "
Particularly in light of the unforeseeable application
of the anti-SLAPP motion to more and more situations,
a categorical exemption seemed fraught with the risk
of unintended consequences. Can every future
SLAPPback claim be presumed to not be a SLAPP case
itself?
A categorical exemption of SLAPPbacks from the
anti-SLAPP law would also abrogate Jarrow Formulas Inc
v. LaMarche (2003) 31 Cal. 4th 728, a unanimous
decision which held that a malicious prosecution suit
is not exempt from scrutiny under the anti-SLAPP law.
In reaching its decision, the 7 - 0 Court rejected
arguments that applying the anti-SLAPP law to
malicious prosecution claims would kill the tort,
"thereby giving a 'green light to parties and counsel'
to bring meritless actions and rendering unscrupulous
litigators and attorneys 'exempt from any
accountability for their acts.' " Jarrow Formulas, at
page 740. Wrote the Court: "Not so. Neither section
425.16 itself or anything in our anti-SLAPP
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jurisprudence diminishes the viability of meritorious
malicious prosecution claims that may be articulated
against such persons." (Id.) Further, wrote the
court earlier on page 738: "The anti-SLAPP statute
'does not bar a plaintiff from litigating an action
that arises out of the defendant's free speech or
petitioning' (citations omitted); rather "it subjects
to potential dismissal only those actions in which the
plaintiff cannot 'state [ ] and substantiate [ ] a
legally sufficient claim.' "
In light of the above concerns, committee staff
with the author's office and interested parties
convened, discussed alternatives, and arrived at the
compromise August 15 AB 1158 proposal to continue
allowing the filing of an anti-SLAPP motion in a
SLAPPback but eliminating some of the risks to the
SLAPPback filer if the motion succeeds.
Proponents of the broader categorical exemption argue
that a categorical exemption better protects SLAPP
victims, that allowing an anti-SLAPP motion to be
filed in a SLAPPback will make it cost-prohibitive for
many SLAPP victims to proceed, and that any fear that
a SLAPPback action may itself be a SLAPP is sheer
abstract speculation.
b) Overturning Roberts and Wilson
A second component of the Assembly version of AB 1158
would have, in Section 425.16(b)(4) [henceforth
(b)(4)] of the April 25 version, provided that "a
denial of a defendant's special motion to strike or
other dispositive motion shall not constitute probable
cause for bringing or maintaining the cause of action
challenged by the motion if the defendant ultimately
prevails under this section with respect to that cause
of action." This language was intended to overturn a
Supreme Court case (Wilson) and a court of appeals
case (Roberts), both malicious prosecution cases. In
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Wilson, the Supreme Court held a trial court's denial
of an anti-SLAPP motion established probable cause to
bring that underlying action and, therefore, precluded
the filing of a subsequent malicious prosecution
action, even if that court ruling is later reversed on
appeal. (One element of a malicious prosecution
action is the absence of probable cause for bringing
the prior action.) In Roberts, a non-SLAPP case, a
court of appeal held that a denial of a defense
summary judgment motion establishes probable cause,
sufficient to defeat any later malicious prosecution
action, even if a party succeeds in overturning that
denial on appeal.
The April 25 AB 1158's proposed (b)(4) would have
overturned those two cases to allow a party who
eventually prevailed on the anti-SLAPP motion in that
action to file a SLAPPback claim, regardless of prior
adverse rulings. However, the language of (b)(4) was
not just applicable to anti-SLAPP and summary judgment
motions. It would also have applied to motions for
directed verdict and motions for judgment
notwithstanding the verdict. It seem particularly
problematical to say that where a jury has rendered a
verdict (JNOV), and where the JNOV motion was denied
but the jury verdict is overturned on appeal, perhaps
due to new law or new facts, that the plaintiff did
not have probable cause to file the original claim and
would have no probable cause defense to a malicious
prosecution lawsuit even though a jury had once found
in his favor. Here, too, the provision did not seem
well crafted.
The California Defense Counsel strongly opposed the
overturning of the Wilson and Roberts cases,
contending that the bill would upset long settled
precedents holding malicious prosecution to be a
disfavored action, and unwisely sought to cure one
evil of perceived litigation abuse by promoting more
of the same historically disfavored litigation. CJAC
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agreed with the CDC position.
The August 15 AB 1158 deletes the proposed (b)(4)
change and addresses the problem in a different
manner. (See Comment 3 above.) This change (and
others) has switched CDC from an opposed position to a
support position.
c) Deeming a SLAPPback to be a favored action
In addition to overturning a line of malicious
prosecution cases, the April 25 AB 1158 would have
deemed a malicious prosecution action and related
claims arising from dismissal of a SLAPP suit to be a
"favored action because it furthers petition and
speech rights."
This statement, if adopted, would have overturned
cases holding malicious prosecution to be a
"disfavored remedy" as applied to a SLAPPback action.
Moreover, because of its reference to related claims
arising from dismissal of the SLAPP suit, any claim
filed as part of a SLAPPback action would be
"favored." Thus, claims for emotional distress,
conspiracy, common law tort, defamation, unfair trade,
business interference, invasion of privacy, extortion,
abuse of position of public trust, misrepresentation,
sex discrimination, and even assault and battery,
would be deemed favored if filed as part of a
SLAPPback action. Like the categorical exemption for
SLAPPbacks, this provision was thought to be fraught
with risks of unintended consequences.
The August 15 amendments to AB 1158 deleted the
provision.
7. Providing hearing scheduling flexibility for anti-SLAPP
motion
AB 1158 (Lieber)
Page 19
Existing law requires that when an anti-SLAPP motion is
filed, it must be noticed for hearing within 30 days.
This provision is intended to ensure that a defendant can
quickly obtain a hearing on his or her motion to defeat a
SLAPP suit at the earliest possible time. Two recent
appellate court decisions, however, have held that this
requirement is jurisdictional, and the motion must be
dismissed if not heard within that time period.
This bill would correct those cases and would instead
require the motion to be scheduled by the clerk for court
hearing not more than 30 days after service of the motion
unless docket conditions of the court require a later
hearing.
8. Technical author's amendment
On page 7, line 11, strike out "action"
The word is unnecessary since a SLAPPback is defined in
the bill, in pertinent part, as any cause of action for
malicious prosecution or abuse of process.
Support: California Defense Counsel; CA Medical
Association; California Broadcasters
Association; Golden State Manufactured-Home
Owners League; Mexican Political Association;
three individuals
Opposition:Jarrow Rogovin, President of Jarrow Formulas
HISTORY
Source: California Anti-SLAPP Project
Related Pending Legislation:None Known
Prior Legislation:SB 515 (Kuehl), Ch. 338, Stats. 2003
SB 789/SB 1651 (Kuehl) - Vetoed, 2002
AB 1675 (Asm. Judiciary Committee), Ch. 960,
Stats. of 1999
AB 1158 (Lieber)
Page 20
SB 1296 (Lockyer), Ch. 271, Stats. of 1997
SB 1264 (Lockyer), Ch. 726, Stats. of 1992
Prior Vote:Assembly Floor (74 - 0)
Assembly Judiciary Committee (6 - 3)
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