Duck the SLAPP – Twice!

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.

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