By Thomas R. Burke and Diana Palacios
Annually, California’s Courts of Appeal and the Ninth U.S. Circuit Court of Appeals regularly issue several dozen published opinions interpreting California’s anti-SLAPP statute, Civil Procedure Section 425.16 et seq., and 2015 was no different. California’s landmark anti-SLAPP statute remains one of the broadest and strongest statutory protections for free speech and petitioning activities in the nation. Below we briefly summarize significant 2015 anti-SLAPP cases decided by California courts.
PRONG ONE: Does the Anti-SLAPP Statute Apply?
In 2015, many cases analyzed prong one of the statute – whether the plaintiff’s claims arose from the defendants’ challenged speech or petitioning activities. Cal. Civ. Proc. § 425.16 (b)(1) & (e).
Two anti-SLAPP cases, both involving application of the anti-SLAPP statute, will be resolved by the California Supreme Court.
On May 13, 2015, the court granted review in Baral v. Schnitt (CA Supreme Court No. S225090) to resolve a split among lower courts on whether an anti-SLAPP motion can be used to strike “mixed” causes of action – causes of action that contain allegations subject to the anti-SLAPP statute and allegations not within the purview of the statute. In Baral, the Second District Court of Appeal acknowledged a conflict among the appellate courts and disagreed with the line of cases holding that a mixed claim should be stricken because according to the court, the anti-SLAPP statute does not apply to anything less than a cause of action and the statute’s core purpose of disposing of lawsuits arising from speech and petitioning activity is not served when no cause of action is eliminated.
On Dec. 16, 2015, the court granted review in Park v. Board of Trustees of the California State University (CA Supreme Court No. S229728). Park, an applicant for a tenured faculty position who was denied tenure and consequently terminated, brought a lawsuit for national origin discrimination. The trial court denied the anti-SLAPP motion finding that the gravamen of the complaint was not the defendant’s communicative conduct, but was instead the act of denying the plaintiff tenure. The appellate court reversed, holding the claims arose from activity protected by the anti-SLAPP statute because the university’s tenure review proceedings constituted official proceedings for the purpose of CCP 425.16 (e)(2) and the communications at issue were statements and written reviews made during the plaintiff’s tenure review. In Park, the California Supreme Court will decide the following question: Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications? This case will likely explore issues concerning the government’s ability to use the anti-SLAPP statute.
In Grenier v. Taylor, 234 Cal. App. 4th 471 (2015), the appellate court held that allegedly libelous Internet postings regarding the leadership of a church were of public interest under the first prong of the anti-SLAPP statute because they were of interest to a church community of 550 to 1,000 members, which was “large enough to qualify as a ‘community’ for purposes of section 425.16,” and in “the context of information ostensibly provided to aid consumers choosing among churches, the [allegedly defamatory] statements were connected to an issue of public concern.” The court, however, went on to hold that the plaintiffs had established a probability of prevailing.
Anderson v. Geist, 236 Cal. App. 4th 79 (2015) involved the execution of a search warrant. The appellate court acknowledged that the execution of a warrant was “an act in furtherance of a criminal prosecution” as the defendants argued, but the court affirmed the trial court’s denial of an anti-SLAPP motion because the anti-SLAPP statute is not available where the government is not exercising a right, stating, “[a]t base, the execution of a warrant is not an exercise of rights by the peace officer; it is the performance of a mandatory duty, at the discretion of the court.” Because the peace officers have no discretion in executing a warrant, the court explained, a lawsuit based on such activity would not have the chilling effect the anti-SLAPP statute was enacted to prevent.
In Bikkina v. Mahadevan, 241 Cal. App. 4th 70 (2015), the plaintiff sued his former dissertation adviser for statements the adviser made about the plaintiff’s research and published papers. The trial court denied the anti-SLAPP motion and the court of appeal affirmed. In so doing, the appellate court held that the adviser’s comments were only made to the university faculty and plaintiff’s employer and thus, were “not made in a place open to the public or a public forum.” The appellate court rejected the defendant’s argument that the dispute related to a matter of public interest – climate change – because defendant’s comments and plaintiff’s papers only remotely related to the broader subject of climate change and did not contribute to the topic.
Courts also published opinions to make an important point about civility and to address potential abuse of the anti-SLAPP statute. In Finton Construction, Inc. v. Bidna & Keys, APLC, 238 Cal. App. 4th 200 (2015), the trial court granted the defendant law firm’s anti-SLAPP motion and dismissed a homebuilder’s action for conversion and receipt of stolen property for defendants’ alleged possession of a hard drive. On appeal, the court observed that “the lack of civility demonstrated in this case is a matter of public interest” and that the “type of uncivil behavior specious tactics demonstrated by filing this case” was a “particularly egregious SLAPP” such that the court not only ruled in defendants’ favor but chose to “publish this case as an example to the legal community of the kind of behavior the bench and the bar together must continually strive to eradicate.” Because the acts alleged in the complaint all arose out of defendants’ representation of their clients, the court held that the anti-SLAPP statute applied. The court also went on to hold that the claims were barred by the litigation privilege.
Olive Properties L.P. v. Coolwaters Enterprises, Inc., 241 Cal. App. 4th 1169 (2015) was published by the appellate court “to address the potential for abuse of the anti-SLAPP statute in unlawful detainer litigation.” In affirming the trial court’s denial of an anti-SLAPP motion because the unlawful detainer action did not arise from protected activity, the court explained that the unlawful detainer statues were adopted to provide an expeditious way of getting back property when a tenant fails to pay rent, but with the anti-SLAPP motion and its appeal, the tenant “succeeded in stalling the unlawful detainer action for a protracted period of time.”
In two separate opinions, courts explained that unlike in cases where nonclients bring causes of action against attorneys, the anti-SLAPP statute is not available in a claim brought by clients against their own attorney for malpractice. See Loanvest I, LLC v . Utrecht, 235 Cal. App. 4th 496 (2015); Sprengel v. Zbylut, 241 Cal. App. 4th 140 (2015).
PRONG Two: Did the Plaintiffs Show a “Probability of Prevailing” on Their Claims?
Several courts also addressed the second prong of the anti-SLAPP statute – whether a plaintiff met their burden of demonstrating with admissible evidence a “probability of prevailing” on their claims. Cal. Civ. Proc. § 425.16 (b)(1). Because the second prong depends on the cause of action, the allegations, and the admitted evidence, cases differ significantly. For example, in Grenier v. Taylor, 234 Cal. App. 4th 471 (2015), the court affirmed the denial of an anti-SLAPP motion for defamation and emotional distress brought by a church pastor and his wife against their stepson and a parishioner because the pastor was not a limited-purpose public figure for purposes of the action and plaintiff made a prima facie showing that defendants’ accusations made on a website that plaintiffs engaged in child molestation, misappropriated church funds, and sold and smuggled drugs were false and caused severe emotional distress. Contrastingly, in Barker v. Fox & Associates, 240 Cal. App. 4th 333 (2015), the appellate court reversed the trial court and dismissed the defamation lawsuit brought by a caretaker against a conservator of an elderly woman’s estate and others because the caretaker could not rely on allegations in her complaint that the defendants’ statements were defamatory per se and failed to demonstrate that the common-interest privilege did not apply absent a showing of malice.
In 2015, courts produced a mix of cases addressing malicious prosecution claims under the second prong of the anti-SLAPP statute. See Pasternack v. McCullough, 235 Cal. App. 4th 1347 (2015) (anti-SLAPP motion granted dismissing malicious prosecution claim because plaintiff could not prove the favorable termination element); Nunez v. Pennisi, 241 Cal. App. 4th 861 (2015) (reversing in part trial court’s denial of anti-SLAPP motion and holding that the plaintiff failed to establish a probability of prevailing in his malicious prosecution as to some of the defendants).
The Ninth Circuit also focused on the second prong of the anti-SLAPP statute in Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015), where the court affirmed the district court’s denial of an anti-SLAPP motion in a right-of-publicity lawsuit brought by former college football players against the developer of the Madden NFL video game because the developer failed to show that its unauthorized use of the former players’ likenesses qualified for First Amendment protection under the transformative use defense, the public-interest defense, the Rogers v. Grimaldi test, or the incidental-use defense. On Oct. 5, 2015, Electronic Arts filed a petition for a writ of certiorari with the U.S. Supreme Court raising the issue of “[w]hether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.”
Exemptions (When a Lawsuit Is Not Subject to the Anti-Slapp Statute):
In addition, the exemptions to the anti-SLAPP statute were analyzed in several cases.
In Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC, 239 Cal. App. 4th 808 (2015), the appellate court analyzed the “illegality” exemption, holding that a lawsuit for injunctive relief sought by a union representing county deputy sheriffs was not exempt from the anti-SLAPP statute because the publication of a news article derived from information in the deputy sheriffs’ confidential background investigation files was not “illegal as a matter of law.” Similarly, in Collier v. Harris, 240 Cal. App. 4th 41 (2015), an action brought by a political activist supporting a candidate in a school board election against a domain-name registrant for invasion of privacy, the court held that the “illegality” exemption was not satisfied because the plaintiff did not provide conclusive evidence to establish that the defendant’s alleged activity violated any statute.
The “public interest” exemption of CCP 425.17 (b) was applied in The Inland Oversight Committee v. County of San Bernardino, 239 Cal. App. 4th 671 (2015), and San Diegans for Open Government v. HAR Construction, Inc., 240 Cal. App. 4th 611 (2015). In The Inland Oversight Committee, the appellate court held that an action brought by plaintiffs to challenge an inverse condemnation settlement agreement under a state law forbidding public officers from having a financial interest in a public contract made by them in their official capacity was “necessary” as required under CCP 425.17(b)(3) because no public entity had sought to enforce the rights the plaintiffs wanted to vindicate and therefore the “public interest” exemption was satisfied. In San Diegans for Open Government, the “public interest” exemption was satisfied by a taxpayers’ action on behalf of a school district to recover contract payments made to building contractors.
The “commercial speech” exemption of CCP 425.17(c) was applied and found to exempt an action where Yellow and Bell cab services sued independent cab-service providers for false advertising of taxi services on the Internet because “no reasonable basis existed for asserting that the allegedly false advertisements constituted conduct in connection with an issue of public interest and was frivolous,” entitling plaintiffs to recover their attorneys’ fees under CCP 425.16(c). L.A. Taxi Cooperative, Inc. v. Independent Taxi Owners Association of Los Angeles, 239 Cal. App. 4th 918 (2015).
Anti-SLAPP Statute’s Odds and Ends
Helpfully, two courts reaffirmed that no amendments to pleadings are permitted after an anti-SLAPP motion is filed. In Bergstein v. Stroock & Stroock & Levan LLP, 236 Cal. App. 4th 793 (2015), no amendment was permitted because the plaintiff presented no proof that actually established a probability of prevailing on the merits. In Mobile Medical Services for Physicians and Advanced Practice Nurses, Inc. v. Rajaram, 241 Cal. App. 4th 164 (2015), the appellate court reversed a trial court’s order allowing plaintiff to file an amended complaint, explaining that the effect of giving leave to amend “was to allow [the plaintiff] to plead around the protected speech in the original complaint.” The court remanded the case and ordered the trial court to grant the defendant’s anti-SLAPP motion.
In Hewlett-Packard Co. v. Oracle Corp., 239 Cal. App. 4th 1174 (2015), the appellate court affirmed the trial court’s denial of an anti-SLAPP motion as untimely because it was filed on the eve of the second phase of a trial and 558 days after the 60-day requirement of CCP 425.16(f), stating “[i]n a pattern that has become all too familiar to the appellate courts of this state, the appeal, like the motion engendering it, is utterly without merit.” Further, after reviewing the purpose of the anti-SLAPP statute, the appellate court urged the legislature to limit the current right of interlocutory appeal under the anti-SLAPP statute to only those where the motion (a) is filed within the allotted 60 days and (b) would – if granted – dispose of the entire action. The Hewlett-Packard decision has rallied several critics of the anti-SLAPP statute to consider legislation to track the court’s legislative suggestion – so this is area to watch in 2016.
Despite the extensive body of case law that already exists, every year brings new wrinkles and interpretations of California’s anti-SLAPP statute. In 2016, we can look forward to a continued steady stream of anti-SLAPP appellate rulings, and potentially, the resolution of some important issues by the California Supreme Court or the legislature.
Thomas R. Burke is a partner in Davis Wright Tremaine LLP’s San Francisco office and is the author of Anti-SLAPP Litigation (The Rutter Group, 2015); Diana Palacios is an associate in the firm’s Los Angeles office.