California’s anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16) provides for special motions to strike complaints that arise from certain protected activity.1

In 1992, in response to the “disturbing increase” in meritless lawsuits brought “to chill the valid exercise of the constitutional rights of freedom and speech and petition for the redress of grievances,” the California legislature overwhelmingly enacted the anti-SLAPP statute to protect against SLAPPs.2

In 1997, the Legislature unanimously amended the anti-SLAPP statute to expressly require that it be “construed broadly.”  (Stats. 1997, ch. 271, § 1, amending subd. (a).)  This amendment also added subdivision (e)(4) to the statute, making it clear that section 425.16 covers conduct as well as statements and writings.  (Id.)

The anti-SLAPP Statute provides for the early dismissal of actions “arising from” a defendant’s exercise of his federal or state constitutional rights to petition or free speech.  (CCP § 425.16(b)(1); see also Ludwig v. Superior Court, 37 Cal. App. 4th 8, 16 (1995) [explaining that the anti-SLAPP Statute is “intended to provide a fast and inexpensive unmasking and dismissal of SLAPP’s.”].)

Adjudicating a special motion to strike brought under section 425.16 is a two-step process.  The moving defendant is first required to make a threshold showing that the lawsuit arises from protected activity fitting within one of the broad categories set out in subdivision (e) of the anti-SLAPP Statute.  (Contemporary Services Corp. v. Staff Pro Inc., 152 Cal. App. 4th 1043, 1054-1055 (2007).)

Once the moving party makes a threshold showing that the suit involves protected conduct, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim with admissible evidence.  (USA Waste of California, Inc. v. City of Irwindale, 184 Cal. App. 4th 53, 61 (2010).)  A plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim.  (Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811, 821 (2002), citations and quotations omitted.)  “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”  (Id.)

A “cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute.”  (USA Waste of California, Inc., supra, 184 Cal. App. 4th at p. 62.)

Footnotes

1. SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.”

2. Subdivision (a) of section 425.16 provides: “The Legislature finds and declares 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.  The Legislature finds and declares 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.  To this end, this section shall be construed broadly.”  (CCP § 425.16(a).)

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