Archive for the ‘SLAPP’ Category

City’s pre-election challenge to initiative not a SLAPP

Monday, January 21st, 2008

(Bumped — note the comment from the attorney for the petitioner inviting amicus participation) 

Tackling the ever more difficult question of when a lawsuit “arises out of” protected activity, the Fourth District Court of Appeal ruled Friday that Riverside’s pre-election challenge to an initiative restricting the city’s power of eminent domain was not subject to special motion to strike under Code of Civil Procedure §425.16.

The proponent of the initiative (and defendant in the city’s suit) argued that filing an initiative with the city is protected activity under the First Amendment — that the right of petition was not completed until after the election.  The Court of Appeal disagreed, however.

“[A] court, in determining whether the anti-SLAPP statute applies, looks at whether a lawsuit arises out of protected activity, rather than a more fundamental dispute.  Above all, as we have already said, what matters is the basisfor the lawsuit; that the City filed its declaratory relief action [seeking a ruling that the initiative was invalid and could not be placed on the ballot] on the heels of the submission of the initiative is not dispositive.”

This may prove to be a difficult standard to apply in practice.  The first prong of a special motion to strike is a showing that the action “arises out of” protected activity.  If that is established, the burden shifts to the plaintiff to show likelihood of success on the merits.  In this case, there is no question that drafting an initiative and collecting enough signatures to place the measure on the ballot are “protected activities” for the purpose of the Anti-SLAPP law.  It also seems not subject to dispute that the cost of defending a lawsuit (in absence of pro bono assistance) is a costly matter — and the city could use the lawsuit as a means of precluding a vote and deterring future initiatives.  The distinction that court draws in this case, without resorting to an attempt to ferret out the subjective intent of the plaintiff, is to note that the suit arises not out of the First Amendment activities of drafting and qualifying an initiative, but rather the substantive legality of the initiative.

That analysis, however, seems to invite a blurring a distinction of the first and second steps of the section 425.16 analysis.  After all, one could argue that in many anti-SLAAP actions that the suit is really about the substantive illegality that forms the basis of the cause of action rather than the exercise of speech rights.   This is an area where further direction from the Legislature and the Supreme Court is necessary.

Two other points about this decision merit mention.  First, the initiative at issue apparently failed to qualify for the ballot and the court decided that the appeal was technically moot.  The court’s reasoning, stated in its order to the parties to brief the mootness question, was put this way:  The initiative failed to complete the process necessary for placement on the ballot.  Thus, validity of the initiative is no longer viable, which means the complaint is moot, in turn rendering moot the granting of the special motion to strike and this appeal.”

Does this mean that a plaintiff can escape liability for attorney fees on an anti-SLAAP motion if the action subsequently becomes moot?  Hasn’t the defendant already suffered the harm that the Legislature attempted to remedy with the fee award?

The second point is that the court noted that on remand, that “inasmuch as the City is now the prevailing party, upon motion in the trial court and a showing that respondents’ motion was ‘frivolous or [was] solely intended to cause unnecessary delay’ … the City may be entitle to attorney’s fees.”

I have wondered how one could show a motion to be “frivolous” if the trial court had initially granted the motion.  If you have convinced a court that the motion is legally correct, does that establish the motion was not frivolous as a matter of law?

Attorney Gets SLAPPed!

Wednesday, August 22nd, 2007

It is never a good sign when the court of appeal opinion starts off: 

“Sometimes lawyers seem to forget that, in their professional capacities, they owe a duty of loyalty to their clients — even when they no longer like them.  And when a lawyer becomes convinced his client is on the wrong side of a particular legal dispute, the lawyer generally has the option of staying out of that dispute.  He does not, however, have the option of switching sides and suing a client on behalf of a third party.”

Believe it or not, it goes downhill from there!  The upshot of the decision is that a client is exercising her constitutional right to petition when she files a request to arbitrate a fee dispute.  Subsequent litigation based on that filing is therefore subject to a special motion to strike under Code of Civil Procedure §425.16.

You might want to share this opinion with attorney in your office responsible for risk managment.

Ambush “Journalism” Protected by Anti-SLAPP Law

Monday, August 6th, 2007

Blanche Hall, the one-time housekeeper for Marlon Brando, alleged that a camera crew and “reporters” for the television show “Celebrity Justice” burst into her room at her retirement home, woke her up, and began filming an impromptu interview about her work for Brando.  All of this, according to the decision in Hall v. Time Warner, is protected conduct that qualifies for California’s special motion to strike procedure.

Code of Civil Procedure §425.16 (the anti-SLAPP law) provides for early dismissal of cases that are based on the defendant’s constitutional rights of free speech or petition in connection with a matter of public concern.  Once that is established, the plaintiff must demonstrate a probability of succeeding on the merits.  This determination takes place before discovery and requires the trial court to consider the admissibility of evidence on which the plaintiff is basing her case.

The court ruled that the public concern test was met here since Hall was listed as a beneficiary of Brando’s will.  Further, actions taken to secure an interview to be broadcast on national television qualify as acts in furtherance of free speech rights.

Duck the SLAPP – Twice!

Thursday, July 19th, 2007

What if the trial judge rules in your favor based on an erroneous view of the law?  You may still have a chance to preserve the favorable ruling on appeal, if your appellate standard of review is “independent judgment.”


Midland Pacific Corp. v. King involved a contract dispute over development of property owned by King.  According to the complaint, Midland agreed to pay King a set amount per approved developable lot, based on the assumption that the city would approve a plan for 120 lots.  During the city approval process, the housing market took off.  Midland alleges that King threatened to submit a plan for 190 lots unless Midland agreed to an increase in the sales price.  King’s filing of a plan for 190 lots resulted in the breach of contract action.

King responded to the suit by filing a special motion to strike under Code of Civil Procedure §425.16 (the so-called Anti-SLAPP motion).  King argued that the basis of the suit was his filing of the proposed tract map – an exercise of his rights to petition government under the First Amendment.  The trial judge rejected that argument and denied the motion. 

The Court of Appeal held that the trial judge erred, since the filing of the tract map was indeed protected by the right to petition and thus also protected by the Anti-SLAPP law.  However, the motion to dismiss under Section 425.16 can still be defeated if the plaintiff demonstrates a probability of prevailing on the claim.

Although the trial court rested its decision on an erroneous basis, the Court of Appeal reviews legal issues under an independent judgment standard.  In this case, that was enough for the Court of Appeal to decide that it could decide, in the first instance, whether the plaintiff demonstrated a probability of success on the merits.  Finding that Midland had demonstrated a probability of success, the Court of Appeal upheld denial of the motion to dismiss.