Anti-SLAPP Flashcards
Murray v. Tran
Dentist brought action against former practice partner, alleging that they made defamatory statements about dentist’s competence in e-mails to various individuals, including their current employer. D moved to dismiss under the anti-SLAPP statute
The Anti-SLAPP statute only applies to statements that in some manner contribute to the public debate: “It is not enough that D’s statement refers to a subject of widespread public interest. The statement must in some manner contribute to the public debate”
- 16(e)(4) Analysis
1) What issue of public interest are we talking about?
- Identify it, look at the content of the speech
2) Is it contributing to the public debate? - Context it was used - Identify of the speaker - The audience - Purpose of the speech
HERE:
1) D’s statements to P’s current employer were directly tethered to the issue of public interest (a dentist’s competence to perform dental work) and
2) Promoted the public conversation on that issue (they were made to a person who had direct connection to and authority over the patient population with whom Dr. Murray was working at the time.)
Here, D satisfied the first two prongs of Anti-SLAPP analysis, so burden shifts to P who needs to show reasonable probability of prevailing on the merits.
- Plaintiff DID NOT meet this burden
D wins, motion to strike is granted
Protected Categories of Defendant’s Activity 425.16(e)
To be read broadly, not an exhaustive list: 425.16(e)
1. Written or oral statement before a proceeding (Judicial, administrative, legislative)
2. Written or oral statement related to a proceeding (Judicial, administrative, legislative)
3. Statement in a public forum about a public issue
a. Written or oral statement,
b. Public place can be on social media, but not a grocery store
c. Public issue if the statement effects a large segment of society (politics, health, safety, education, celebrities)
4. Any other conduct in furtherance of protected activity relating to public interest
a. Catch-all provision
FilmOn 2-part inquiry
1) What issue of public interest are we talking about?
2) Does D’s statement contribute to the public debate?
b. Can be uttered in private
Also remember: Litigation privilege
What is an Anti-SLAPP Motion?
It is a motion to strike (dismiss) an unmeritorious complaint that was filed against the Defendant who engaged in protected activity
Sandlin v McLaughlin
Voter files petition for writ of mandate against the OC register of voters regarding allegedly false/misleading statements made by city council candidates (real parties in interest) on a referendum. Defendant files Anti-SLAPP motion
416.25 Considerations:
1) Did D engage in protected activity under 425.16(e)?
- (e)(4)
○ Any other conduct in furtherance of protected activity relating to an issue of public interest. Applying the Test for (e)(4) (FilmOn), D (Moving party) probably has met their burden,
2) P’s cause of action arises from the statements made by the candidates
- False and misleading statements part of P’s claim
3) Can Plaintiff show that an exemption applies?
Exemptions (b) and (c) don’t apply
- NOT a case of comparative advertising
- (b) also does not apply
- 25(d) DOES apply
- (d)2 applies (political work), therefore exemptions do not apply and the Anti-SLAPP can be filed.
4) Here, P filed too late and therefore would not succeed on the merits
Motion to strike GRANTED
West v Arent Fox LLP
Litigation #1: facility director sues daughter of a resident for defamation; defendant successfully filed anti-slapp motion and received attorneys’ fees
Litigation #2: daughter sues facility director for malicious prosecution and slapp-back claim because plaintiff wanted damages additional to attorneys’ fees
a. Defendant files anti-slapp motion which gets granted
b. Plaintiff is unable to appeal because under 425.18(c), 425.16(i) does not apply to orders granting the motion to strike a slapp-back claim
c. Thus, order was not immediately appealable
d. Here, the first litigation was the protected activity according to defendant.
Elements of Defamation
a. statement that arises from cause of action
b. made to a third party
c. that injures plaintiff
425.17 Exemptions to Anti SLAPP
425.17(b) Public Interest Exemption
Anti-SLAPP dose not apply to any action brought SOLELY in the public interest or on behalf of the general public
How we determine this (read narrowly):
1) The relief that the Plaintiff is seeking must be the SAME as the relief sought for the group a. E.g., $10 for you and injunctive relief for the public is NOT the same 2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit on the general public. a. Actions brought for the public good; action sought to secure a public benefit (e.g., health, safety, education) 3) And private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter. a. Private enforcement: plaintiff must get less than what plaintiff pays (disproportionate financial burden) b. Unless P files an action, there is no enforcement
If all 3 are met, moving party cannot file an Anti-SLAPP motion
- 17(c) Business Activity/Commercial Speech Exemption
(c) Mostly concerned in cases of comparative advertising
1. Action must be against person primarily engaged in the business of selling or leasing goods or services
2. Regarding a statement of fact about the goods or services intended to promote the goods or services- And where the intended audience is the customer or someone likely to relate to or influence a customer
Anti-SLAPP timeline
Should be filed within 60 days from when D is served with the complaint
- Court may extend this time limit, but this is rarely done
- This is filed after the answer to avoid waiving any challenges to P’s pleading (e.g. lack of jurisdiction, which needs to be filed immediately in CA)
What happens to the litigation once an Anti-SLAPP motion is flied?
The filing of a notice of a motion to strike immediately stays discovery, but any interested party may request a continuance of discovery to properly respond to a motion/opposition
- Courts are wary about doing this because they want Anti-SLAPP to resolve quickly
An order granting or denying an Anti-SLAPP motion is immediately appealable (NOT true when it is a SLAPPback case, or if denied b/c of exemption)
What evidence do you use to support an Anti-SLAPP Motion?
- Affidavits (typically only documentary evidence)
- Does not need to be admissible at trial, just needs to be reducible to admissible evidence at trial
- THINK ABOUT THE FALL 2012 EXAM: Frog’s statements about what Patrick said are HEARSAY
- No time to depose parties, do interrogatories etc.
Difference between MSJ and Anti-SLAPP
- The Anti-SLAPP motion is a motion to strike unmeritorious lawsuits that arise out of Defendant’s protected activity
- If the lawsuit did not arise out of protected activity, then you would use MSJ
General Demurrer vs. Anti-SLAPP vs. MSJ
They all attack the claim, but:
- The General Demurrer argues that there is not enough factual material to support the cause of action.
○ Bockrath: Needs to be enough facts to support every element of the cause of action - Anti-SLAPP tests more than the facts, also tests some of the evidence, and decides whether there is a reasonable probability that the Plaintiff will prevail on the merits.
- MSJ tests the evidentiary sufficiency of the complaint after the benefit of discovery
What is Litigation Privilege?
Immunity from civil liability that may arise from statements made by the Defendant in connection with the litigation.
○ Must be about the litigation
○ Must be made to someone involved in the litigation
Protects the integrity of the adversarial system
What will the Moving Party argue in an Anti-SLAPP motion?
- Defendant engaged in protected activity (OR litigation privilege)
- Look at 416.25(e) - Plaintiff’s cause of action arises out of D’s protected activity
- The Defendant’s protected activity must be an element of the Plaintiff’s cause of action (e.g., publishing a fact when the claim is defamation) - The exemptions don’t apply (if they apply, Anti-SLAPP doesn’t)
- P cannot show a reasonable probability of prevailing on the merits
If D can show 1 and 2, burden shifts to party opposing the motion
D can also respond to the opposing party’s reply to show more documentary evidence.
What will the Opposing Party argue in an Anti-SLAPP motion?
If the moving party successfully shows that D engaged in protected activity, and P’s cause of action arises out of D’s protected activity, then OPPOSING party has the burden of showing:
- The exemptions apply
- P has a reasonable probability of prevailing on the merits
