BY THOMAS R. BURKE1
In 2019, California’s appellate courts issued 42 published opinions interpreting the state’s anti-SLAPP statute. Cal. Civ. Proc. § 425.16 et. seq. Litigants filed at least 435 anti-SLAPP motions in California’s trial courts according to their reporting to the Judicial Council. California’s Supreme Court issued five substantive opinions interpreting the statute while the state’s appellate courts issued nearly 200 unpublished anti-SLAPP opinions. We briefly highlight the past year’s anti-SLAPP rulings for busy anti-SLAPP practitioners.
Enacted in 1992 to protect the exercise of free speech and petitioning activities, California’s anti-SLAPP statute remains the strongest—and most frequently litigated—statutes of its kind in the nation. California’s statute follows a two-step process. In the first step—or “prong one”—the defendant must make a prima facie showing that allegations in the complaint arise from constitutionally-protected petitioning or free speech activity that support the plaintiff’s claims for relief. In the second step—or “prong two”—the burden shifts to the plaintiff to demonstrate that each challenged claim is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, determines whether the plaintiff’s showing would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Baral v. Schnitt, 1 Cal. 5th 376, 396 (2016). The anti-SLAPP statute is to be “construed broadly.” Cal. Civ. Proc. Code § 425.16(a).
Trio of Supreme Court Prong One Cases
In 2019, three unanimous opinions issued by the California Supreme Court provide specific guidance on how prong one of the statute operates.
In Rand Resources, LLC v. City of Carson, 6 Cal. 5th 610 (2019), in an opinion authored by Justice Cuéllar, the Court analyzed “what makes something an issue of public interest” (id. at 619), noting that “a defendant must do more than identify some speech touching on a matter of public interest”, citing to its decision in Park v. Board of Trustees of California State University, 2 Cal. 5th 1057, 1063 (2017). The Court emphasized that “[a]t a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance. What a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospect that such speech may conceivably have indirect consequences for an issue of public concern.” Id. at 624.
In FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133 (2019), also authored by Justice Cuéllar, the Court emphasized that when deciding whether the anti-SLAPP statute applies, courts should analyze the context of the statement, including the speaker, audience, and purpose (id. at 148), offering a two-part test. First, the court asks what public issue the speech implicates. Second, the court analyzes what functional relationship exists between the speech and the public conversation about some matter of public interest, including whether the speaker “participated in, or furthered, the discourse that makes an issue of public interest.” Id. at 150-151. Specifically, in FilmOn, the Court considered “whether the commercial nature of a defendant”s speech is relevant in determining whether that speech merits protection” under section 425.16, subdivision (e)(4) and concluded that the context of a statement—including “the identity of the speaker, the audience, and the purpose of the speech”—is “relevant, though not dispositive, in analyzing whether the statement was made ‘in furtherance of’ free speech in connection with’ a public issue.” Id. at 140.
In FilmOn, the Court also emphasized that a defendant asserting the anti-SLAPP statute must demonstrate that the plaintiff’s action is sufficiently connected with a public issue. A defendant “cannot merely offer a ‘synecdoche theory’ of public interest, defining their narrow dispute by its slight reference to the broader public issue.” Id. at 152. Yet the Court also noted that prong one does not involve value judgments: “[O]ur inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant — through public or private speech or conduct – participated in, or furthered, the discourse that makes an issue one of public interest.” Id. at 150-151.
Finally, in Wilson v. Cable News Network, Inc., 7 Cal. 5th 871 (2019), the Court resolved a line of conflicting appellate court opinions by confirming that the “[anti-SLAPP] statute contains no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges in support of his or her claim may qualify as protected speech or petitioning activity” under the statute. Id. at 881. To trigger anti-SLAPP protection in prong one, a defendant must make a prima facie showing that the plaintiff’s protected conduct falls within one of the four categories described in Cal. Civ. Proc. § 425.16 (e)(1) – (4), and that the protected conduct supplies one or more elements of a plaintiff’s claims. Id. at 884 (citing to Rand Resources, supra, 6 Cal. 5th at 620).
Collectively, the opinions in Baral, Park, Rand Resources, FilmOn and Wilson represent a dedicated effort by the California Supreme Court to elaborate how prong one of the anti-SLAPP statute operates. Time will tell, but one potential result of these opinions may be a sharp reduction in the number of anti-SLAPP motions filed in the years ahead.
Prong One Cases
In 2019, California’s appellate courts continued to uphold traditional uses of the anti-SLAPP statute. For example:
— Statements challenged in a letter sent by concerned parents to authorities about the conduct of a private school’s principal that led to his removal were protected by the anti-SLAPP statute because they implicated issues of public interest including providing school children with an appropriate education and protecting them and school employees from abuse, bullying and harassment and “contributed to the public debate, or further the discourse, on these issues.” Hicks v. Richard, 39 Cal. App. 5th 1167, 1176-1177 (2019) (citing to FilmOn, supra, 7 Cal. App. 5th at 149-150).
— A professional singer’s decision to terminate his long-time drummer from his band was protected by the anti-SLAPP statute because a “singer’s selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech.” Symmonds v. Mahoney, 31 Cal. App. 5th 1096, 1106 (2019);
— A whistleblower’s lawsuit for retaliation against his former employer was protected by the anti-SLAPP statute because, consistent with Wilson, 7 Cal. 5th at 884, defendant’s investigation of plaintiff was the allegedly adverse employment “at the heart” of plaintiff’s complaint. Jeffra v. California State Lottery, 39 Cal. App. 5th 471, 481-483 (2019);
— Similarly, defamation and retaliation claims brought by a state university professor that arose from internal investigations by the university involved an “official proceeding” (authorized by Education Code § 89030) triggered protection under the anti-SLAPP statute. Laker v. Board of Trustees of California State University, 32 Cal. App. 5th 745, 764-768 (2019);
— Challenged articles in the Los Angeles Times regarding the accuracy of a blog posted on the Times website about police misconduct and enforcing jaywalking laws appeared in a public forum and involved a matter of public interest. Rall v. Tribune, 43 Cal. App. 5th 638, 652-653 (2019);
— Acts of soliciting investments and performing preliminary work on a documentary film about the Syrian refugee crisis was conduct in furtherance of defendant’s exercise of free speech. Ojjeh v. Brown, ___ Cal. App. 5th ___ (2019 WL 7343098 *6);
— Although record company’s statements challenged by plaintiff’s had the commercial purpose of selling albums, they also contributed to the “public conversation” about whether Michael Jackson was lead singer on all tracks on the album and therefore protected under the statute. Serova v. Sony Music Entertainment, ___ Cal. App. 5th ___, (2020 WL 90627 *15); and
— Interference and defamation claims brought by a motivational speaker against a social media poster who asserted plaintiff engaged in “widespread, criminal identity theft” involved a matter of public interest protected by the anti-SLAPP statute. Briganti v. Chow, 42 Cal. App. 5th 504, 508 (2019).
Litigation-related activities also received protection in 2019 under the anti-SLAPP statute, including:
— A judicial challenge to a trust or other protected instrument involves “a ‘writing made before a . . . judicial proceeding'” and “falls within the express statutory definition of conduct” protected by the anti-SLAPP statute. “The threat of facing a petition seeking forfeiture of an inheritance is certainly capable of chilling resort to the judicial process; indeed, that is the point of a no contest clause.” Key v. Tyler, 34 Cal. App. 5th 505, 522 (2019);
— Claims arising from settlement negotiations and alleged “wrongful disbursement” of settlement funds are protected. O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC, 42 Cal. App. 5th 546, 566-567 (2019).
However, not all conduct by lawyers in the course of representing clients is protected by the statute. Miller Martial Deduction Trust v. Zurich American Ins. Co., 41 Cal. App. 5th 247, 257-259 (2019) (anti-SLAPP protection not available in insurance coverage action because allegations of protected activity that merely provide context to the complaint but don’t support a claim for recovery cannot be stricken under the statute, relying on Baral, supra., 1 Cal. App. 5th 376, 394);
In a wrongful eviction action against a landlord and his attorneys, allegations in the complaint that the defendant landlord misused plaintiffs’ security deposit did not arise from protected activity against the attorney defendants because the misuse of a security deposit is not an act in furtherance of the attorney defendants’ rights of free speech or petition, or a communication preparatory to or in anticipation of litigation. Olivares v. Pineda, 40 Cal. App. 5th 343, 351-353 (2019).
Still other appellate courts in 2019 found the anti-SLAPP statute was not available in a variety of contexts:
— A private dispute between a bartender and a public figure actor did not become a matter of public interest simply because the incident was widely communicated to the public on the Internet and television. Bernstein v. LaBeouf, 43 Cal. App. 5th 15 (2019) (citing to FilmOn);
— A private contractual arbitration is not a judicial or official proceeding subject to the anti-SLAPP statute. Zhang v. Jenevein, 31 Cal. App. 5th 585 (2019);
— A family’s claims against a county for a deadly attack that occurred after a patient was released from an involuntary hold from the county’s medical center were not subject to the anti-SLAPP statute because the statutory procedures for the involuntary treatment of people under the Lanterman-Petris-Short Act are not “presumptively public in nature” and the family’s claims arose from the county’s alleged negligence “not because of the substance of statements made in connection with” alleged statutory violations. Swanson v. County of Riverside, 36 Cal. App. 5th 361, 372-373 (2019) (citing to Park and rejecting comparison to the medical peer review process);
— Anti-SLAPP protection is not available against a petition for joinder. In re Marriage of Benner, 36 Cal. App. 5th 177, 189-196 (2019) (a petition that sought to join an expert witness as an indispensable party to a marital dissolution action to determine the reasonableness of the expert’s fees did not assert a cause of action and not subject to anti-SLAPP protection);
— A lawsuit for declaratory relief to enforce a court judgment did not trigger the anti-SLAPP statute because there was no exercise of the right of petition or free speech involved. Supershuttle International, Inc. v. Labor and Workforce Development Agency, 40 Cal. App. 5th 1058, 1066-1070 (2019) (citing to Park);
— Similarly, in a lawsuit brought by commercial tenant alleging that its landlord wrongfully refused to consent to an assignment, an anti-SLAPP motion was denied because although settlement discussions were referenced in the complaint, the tenant’s claim arose out of the of the landlord’s decision not to consent to the assignment, not the settlement communications or litigation related conduct. ValueRock TN Properties, LLC v. PK II Larwin Square SC LP, 36 Cal. App. 5th 1037, 1049-1050 (2019) (citing to Park); and
— A flurry of opinions issued in December produced a split of authority on whether an action to enforce an indemnification obligation is subject to the anti-SLAPP statute. See Long Beach Unified School Dist. v. Williams, 43 Cal. App. 5th 87 (2019) (indemnity claims arose from protected activity of filing the underlying lawsuit) (relying on Lennar Homes of California, Inc. v. Stephens, 232 Cal. App. 4th 673 (2014) compare C.W. Howe Partners, Inc. v. Mooradian, 43 Cal. App. 5th 688 (wrongful act giving rise to indemnity claim was not the filing of the underlying action, but rather, the refusal to honor the indemnity obligation) (citing to Park and Wilson); Wong v. Wong, 43 Cal. App. 5th 358 (no anti-SLAPP protection because defendant was not sued for pursing earlier litigation but for breaching obligation to indemnify).
Prong Two: Did the Plaintiff Show a “Probability of Prevailing”” on Their Claim?
Under California’s anti-SLAPP statute, in “prong two,” the burden shifts to the plaintiff to establish – with admissible evidence – a “probability” of prevailing on the claims challenged by the anti-SLAPP motion. Cal. Civ. Proc. Code § 425.16, subd. (b).
In Sweetwater Union High School District v. Gilbane Building Co., 6 Cal. 5th 931, 947 (2019), the California Supreme Court, in an unanimous opinion written by Justice Corrigan, held that in evaluating evidence offered by a plaintiff in opposition to an anti-SLAPP motion, a court may consider affidavits, declarations, and their equivalents if it is “reasonably possible” the proffered evidence set out in those statements will be admissible at trial. If the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it if an objection is made unless the asserted defect or demonstrate the defect is curable.” Id. at 949; approving the approach used in Fashion 21 v. Coal. For Humane Immigrant Rights of Los Angeles, 117 Cal. App. 4th 1138 (2004).
In Sweetwater, the Supreme Court specifically approved the use of guilty plea narratives signed under penalty of perjury and transcripts of grand jury testimony as the equivalent of declarations. See also Teamsters Local 2010 v. Regents of the University of California, 40 Cal. App. 5th 659, 667 (2019) (a trial court, when deciding an anti-SLAPP motion, may rely on a declaration to “fill in the gaps” to assess the plaintiff’s probability of prevailing on the merits); Abir Cohen Treyzon Salo, LLP v. Lahiji, 40 Cal. App. 5th 882, 888-892 (2019) (law firm’s lawsuit for libel against the daughter of a former client was dismissed when plaintiff offered only speculation that the defendant had authored the underlying online reviews; the trial court’s decision to deny discovery was also upheld as not an abuse of discretion).
In 2019, a variety of individual claims and entire lawsuits were dismissed in prong two, in successful anti-SLAPP motions. For example:
— Claims that proceeds from a litigation settlement were wrongfully disbursed were dismissed in prong two because plaintiffs failed to satisfy the statutory requirements for a contingency retainer agreement. O&C Creditors Group, LLC, supra., 42 Cal. App. 5th at 576;
— Plaintiffs’ malicious prosecution claim against their insured – filed more than three years after the one-year statute of limitations expired – dismissed. Garcia v. Rosenberg, 42 Cal. App. 5th 1050, 1059-1061 (2019);
— Claims for defamation brought by an incumbent congressman against a challenger’s campaign were dismissed when the congressman failed to demonstrate that the challenged statements about his conduct were false. Issa v. Applegate, 31 Cal. App. 5th 689, 701-716 (2019);
— Libel and emotional distress claims brought by a former private school principal were dismissed because the plaintiff failed to prove that the challenged statements about his conduct were not protected by the common interest privilege. Hicks v. Richard, 39 Cal. App. 5th 1167, 1177-1180 (2019);
— Libel and privacy action against a news publisher brought by a real estate developer and his son-in-law who challenged news reporting about some $200,000 in independent political expenditures made to candidates in a local election was dismissed because plaintiffs failed to make a prima facie showing that the statements they challenged were false. Sonoma Media Investments, LLC v. Sonoma County Superior Court, 34 Cal. App. 5th 24, 36-44 (2019); and
— An appellate court, reversing the trial court, dismissed a defamation claim brought by a professor against a university that had accused him of knowing of sexual harassment but failing to report it because the challenged statement was absolutely privileged under Cal. Civ. Code § 47 (b)(3). Laker v. Board of Trustees of California State University, 32 Cal. App. 5th 745 (2019).
However, in other cases, plaintiffs successfully overcame anti-SLAPP motions, showing a probability of prevailing on their claims. For example:
— In Monster Energy Co. v. Schechter, 7 Cal. 5th 781, 795-796 (2019), the California Supreme Court, relying on its earlier Sweetwater decision, determined that Monster Energy overcame an anti-SLAPP motion by demonstrating that its breach of contract claim against its former attorneys satisfied the “minimal merit” requirements of prong two based on language in the underlying settlement agreement, counsel’s execution of the agreement, and public comments made after settlement in an underlying wrongful death action;
— A whistleblower’s retaliation action overcame an anti-SLAPP motion because plaintiff’s minimal merit showing of a causal connection between the filing of his action and his retirement was sufficient to allow his case to proceed. Jeffra, supra, 39 Cal. App. 5th at 483-486;
— In an action to enforce a no contest clause in a probate proceeding, the plaintiff overcame an anti-SLAPP motion in part, because the litigation privilege does not apply to such actions. Key, supra, 34 Cal. App. 5th at 526-528;
— The plaintiff in a libel action overcame an anti-SLAPP motion by submitting a declaration that stated and substantiated her claim that she had no criminal indictments or convictions and that defendant’s challenged Facebook post inhibited her ability to raise funds to support the release of a movie. Brigant, supra, 42 Cal. App. 5th at 483-486;
— An alleged rape victim’s lawsuit for defamation and related claims against comedian Bill Cosby overcame portions of an anti-SLAPP motion by producing sufficient evidence to show that Cosby personally approved or authorized statements in press releases issued by his attorney containing allegedly false statements of fact. The appellate court also rejected Cosby’s contention that the challenged statements were not actionable because they “represent zealous advocacy by his attorney.” Dickinson v. Cosby, 37 Cal. App. 5th 1138, 1155-1166 (2019);
Claims for breach of contract and interference arising from a television production of the life of the Mexican-American celebrity Jenni Rivera, an anti-SLAPP motion was defeated when the plaintiff showed that the producer defendants had knowledge of a non-disclosure agreement. The appellate court however dismissed all claims, on First Amendment grounds, against a defendant broadcaster who was unaware of the nondisclosure agreement. Jenni Rivera Enterprises LLC v. Latin World Entertainment Holdings, Inc., 36 Cal. App. 5th 766, 782- 801 (2019); and
In a malicious prosecution action brought against the plaintiff’s former employer and its attorney, the appellate court – reversing the trial court – held that plaintiff overcame an anti-SLAPP motion because plaintiff offered evidence (if credited by the trier of fact) that defendants pursued two untenable claims in the underlying action. Cuevas-Martinez v. Sun Salt Sand, Inc., 35 Cal. App. 5th 1109, 1120-1122 (2019).
Exemptions to the Anti-SLAPP Statute – When a Lawsuit Is Not Subject to the Statute
There are four situations when a plaintiff’s complaint may be exempt from the anti-SLAPP statute: (1) public-enforcement actions; (2) actions filed solely in the public interest; (3) actions involving certain commercial speech; and (4) criminally illegal conduct by the defendant. See Cal. Civ. Proc. § 425.17 et seq.; Flatley v. Mauro, 39 Cal. App. 4th 299, 315-316 (2006).
Benton v. Benton, 39 Cal. App. 5th 212, 217-200 (2019), serves as a reminder that once a trial court determines that a complaint is exempt from an anti-SLAPP motion, there is no automatic right of appeal. Cal. Civ. Proc. § 425.17 (e). In a dispute by an ex-husband dentist against his former spouse and her new, competing dental practice for claims including misappropriation of trade secrets, interference, and defamation, the trial court determined plaintiff’s lawsuit was exempt under the “commercial speech” exemption of the anti-SLAPP statute. Cal. Civ. Proc. § 425.17(c). The appellate court dismissed plaintiff’s appeal for lack of jurisdiction and declined to treat the appeal as a writ.
In Serova v. Sony Music Entertainment, the appellate court upheld the exception provided in Cal. Civ. Code Proc. § 425.17 (d)(2) for the promotion of musical works, and went on to determine that the action was protected by the anti-SLAPP statute and involved noncommercial speech. Id.
Anti-SLAPP Procedural and Attorneys’ Fees Rulings
Interpreting the California Supreme Court’s recent opinion in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5th 637 (2018), reversing the trial court, the appellate court held that even though an amended complaint is based on the same facts alleged in the original complaint, if new claims for relief are pled, an anti-SLAPP motion may be filed within 60 days. Starview Property, LLC v. Lee, 41 Cal. App. 5th 203, 208-213 (2019).
Three other appellate court rulings in 2019 addressed anti-SLAPP attorneys’ fees issues:
— California’s Cartwright Act’s fees shifting provisions do not conflict with the anti-SLAPP statute and preclude a defendant from recovering attorney’s fees. Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, 33 Cal. App. 5th 38, 46-48 (2019);
— Reversing the trial court, an appellate court found defendants and their counsel jointly and severally liable, for nearly $36,000 and $8,500 (payable to the appellate court) in sanctions for the frivolous appeal of the denial of an anti-SLAPP motion. The appellate court ruled that the anti-SLAPP statute was not triggered by the circulation of email that involved construction plans for a property adjacent to property for sale because “the views from a private resident do not involve a matter of public concern.” Workman v. Colichman, 33 Cal. App. 5th 1039, 1056 (2019); and
— Conversely, $28,795.70 in sanctions awarded against defendants who brought an anti-SLAPP motion that the trial court deemed frivolous was reversed after the appellate court, reviewing the matter de novo, determined that a reasonable attorney could have concluded that a writ petition asserted claims against defendants that arose from protected conduct in an underlying mandamus proceeding. Rudisill v. California Coastal Commission, 35 Cal. App. 5th 1062, 1071-1075 (2019).
1 Thomas R. Burke is a partner with Davis Wright Tremaine LLP in the firm’s San Francisco office. He is the author of Anti-SLAPP Litigation (2013-present) published by West/The Rutter Group and annually co-edits the “Anti-SLAPP Motions” chapter within The Rutter Group’s Civil Procedure Before Trial. Since 2002, Mr. Burke has successfully litigated hundreds of anti-SLAPP motions and represented clients in prominent anti-SLAPP cases in the California Supreme Court, California Courts of Appeal and the Ninth Circuit Court of Appeals.