(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?