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SLAPP Cases Decided by the California Supreme Court

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The following are opinions issued by the California Supreme Court concerning the anti-SLAPP statute (CCP § 425.16).  Clicking on the name of the case will lead to the text of the opinion.  For opinions issued in and after 2014, clicking on the case name will lead to the text of the opinion on Google Scholar.

Baral v. Schnitt
California Supreme Court, 2016
1 Cal.5th 376, 205 Cal.Rptr.3d 475, 376 P.3d 604

Plaintiff’s second amended complaint contained causes of action for breach of fiduciary duty, constructive fraud, negligent misrepresentation, and a claim for declaratory relief.  Defendant’s anti-SLAPP motion sought to strike all references to an audit by an accounting firm.  The trial court denied the motion without deciding whether the complaint contained allegations of protected activity, ruling that the anti-SLAPP motion applied only to entire causes of action as pleaded in the complaint, or to the complaint as a whole, not to isolated allegations within causes of action.  The Supreme Court reversed, holding that, as used in § 425.16(b)(1), “cause of action” referred to allegations of protected activity asserted as grounds for relief, and thus the anti-SLAPP statute could reach distinct claims within pleaded counts, requiring a probability of prevailing on any claim for relief based on allegations of protected activity, even if mixed with assertions of unprotected activity.  The Court disapproved of the opinion in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.

Barrett v. Rosenthal
California Supreme Court, 2006
40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146 P.3d 510

Three plaintiffs, vocal critics of alternative medicine, sued our client, breast-implant awareness activist Ilena Rosenthal, for defamation and related claims, based on critical comments she made about two of them on the Internet. The trial court granted her anti-SLAPP motion. The Court of Appeal affirmed this ruling as to two plaintiffs, but reversed as to the third. The California Supreme Court held that the third plaintiff’s claims should be dismissed as well, ruling that Rosenthal was protected from civil liability for republication of the words of another on the Internet by section 230 of the federal Communications Decency Act. On remand, the trial court awarded more than $434,000 for attorneys fees.

Barry v. The State Bar of California
California Supreme Court, Jan. 5, 2017
2 Cal.5th 318, 212 Cal.Rptr.3d 124, 386 P.3d 788

Plaintiff attorney filed an action seeking to vacate a stipulation she had entered into to having committed professional misconduct and a 60-day suspension from the practice of law.  The trial court granted the State Bar’s anti-SLAPP motion, ruling that the claims arose from protected activity and that plaintiff could not establish a probability of prevailing, because (inter alia) a superior court lacked subject mater jurisdiction over attorney discipline matters.  The trial court also awarded $2,575 in attorneys’ fees.  Plaintiff appealed the fee award.  The Court of Appeal reversed the fee award, finding  that the trial court’s lack of subject matter jurisdiction precluded it from ruling on the State Bar’s anti-SLAPP motion and awarding fees.  The Supreme Court reversed the Court of Appeal and upheld the fee award, holding that the superior court properly found that plaintiff had failed to show a probability of prevailing on her claim because the superior court lacked subject matter jurisdiction, and that said ruling was not on the merits of plaintiff’s claim.

Briggs v. ECHO
California Supreme Court, 1999
19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564

The Briggses, landlords, sued our client, a nonprofit organization that provides counseling, mediation, and referral services related to landlord-tenant disputes, alleging that the organization harassed and defamed them. The trial court granted defendant’s anti-SLAPP motion. The appellate court reversed in a 2-1 decision, finding no “issue of public significance” in the defendant’s conduct. In its first case involving the California anti-SLAPP law, the California Supreme Court reversed the Court of Appeal, holding that the anti-SLAPP statute is to be construed broadly and covers any lawsuit arising from the exercise of the right to petition the government, regardless of the issue involved. In total, the trial court awarded more than $425,000 for attorneys fees and costs.

City of Cotati v. Cashman
California Supreme Court, 2002
29 Cal.4th 69, 124 Cal.Rptr.2d 519, 52 P.3d 695
Note:  This case was reviewed together with Navellier v. Sletten and Equilon Enterprises v. Consumer Cause, Inc.

A city’s action for declaratory relief respecting the constitutionality of its ordinance, filed in state court in response to a similar action filed by citizens in federal court, does not constitute a SLAPP and is not subject to Code of Civil Procedure section 425.16.

City of Montebello v. Vasquez
California Supreme Court, 2016
1 Cal.5th 409, 205 Cal.Rptr.3d 499, 376 P.3d 624

A city sued three of its former council members and a former city administrator, claiming they violated Gov. Code, § 1090, by voting on a waste hauling contract in which they held a financial interest.  The trial court denied defendants’ anti-SLAPP motion.    The Court of Appeal affirmed, holding that defendants’ votes on the contract were not protected activity under § 425.16.  The Supreme Court reversed and remanded, holding that the council member defendants’ votes cast in favor of the contract at issue constituted protected activity under § 425.16.

Club Members for an Honest Election v. Sierra Club
California Supreme Court, 2008
45 Cal.4th 309, 86 Cal.Rptr.3d 288, 196 P.3d 1094

Club Members for an Honest Election (Club) sued the Sierra Club, claiming its elections were unfairly influenced when the board of directors promoted the views that advanced the majority of the Board and members’ position, in conflict with Club’s minority interests. The Court of Appeal applied the public interest litigation exception under C.C.P. 425.17(b) and allowed plaintiff’s claim to proceed, based on the reasoning that the main purpose of the lawsuit was to protect the public interest. The California Supreme Court reversed this decision, holding that the Court of Appeal applied the exception too broadly. The Supreme Court rejected the appellate court’s application of the “principle thrust or gravamen” test and stated that 425.17(b) must be narrowly interpreted. For a claim to fall within the public interest exception, the plaintiff must seek to advance the public interest, and only the public interest. In this case, plaintiff requested remedies that would benefit Club by advancing its interests within the Sierra Club. By seeking a personal gain, the plaintiff was prohibited from invoking the exception. The Court ruled in favor of the Sierra Club and granted its anti-SLAPP motion.

In re Episcopal Church Cases
California Supreme Court, 2009
45 Cal.4th 467, 87 Cal.Rptr.3d 275, 198 P.3d 66

The Los Angeles Diocese sued St. James Parish to recover property when the Parish broke with the Episcopal Church, largely over a doctrinal disagreement after the Episcopal Church ordained an openly gay bishop. The Parish filed an anti-SLAPP motion, arguing that its disagreement with the Church arose from protected speech. The trial court granted the motion, which was reversed by the Court of Appeal. The California Supreme Court affirmed the appellate court’s decision and held that, because the central issue in the case was a property dispute, the anti-SLAPP motion was not appropriate. The Court recognized that protected speech was tangentially at issue, but held that the action must “arise from” protected activity for the defendant to succeed in an anti-SLAPP motion. The Court recognized that protected activity might “lurk in the background,” but found that this would not transform a property dispute into a SLAPP.

Equilon Enterprises, LLC v. Consumer Cause, Inc.
California Supreme Court, 2002
29 Cal.4th 53, 124 Cal.Rptr.2d 507, 52 P.3d 685
Note:  This case was reviewed together with Navellier v. Sletten and City of Cotati v. Cashman

The party moving to strike a complaint under the anti-SLAPP statute is not required to demonstrate that the action was brought with the intent to chill the exercise of constitutional speech or petition rights.

Fahlen v. Sutter Central Valley Hospitals
California Supreme Court, 2014
58 Cal.4th 655, 168 Cal.Rptr.165, 318 P.3d 833

Flatley v. Mauro
California Supreme Court, 2006
39 Cal.4th 299, 46 Cal.Rptr.3d 606, 139 P.3d 2

Flatley, a well-known entertainer, sued attorney Mauro, who threatened to take legal action against him for Flatley’s alleged rape of Mauro’s client. Mauro sent Flatley a “prelitigation settlement” offer demanding payment of $100,000,000 to settle the claim. If Flatley refused to pay, Mauro threatened to not only file a lawsuit, but to widely publicize the rape allegation, including following Flatley around to every place he toured, and to “ruin” Flatley. In addition, Mauro threatened to publicly disclose other alleged criminal violations of immigration and tax law that were entirely unrelated to the rape allegation. The Court of Appeal found that Mauro’s actions constituted extortion as a matter of law, and affirmed the trial court’s denial of his anti-SLAPP motion. The California Supreme Court agreed with the Court of Appeal, holding that a defendant cannot assert the anti-SLAPP statute to protect illegal activity if “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.” The Court noted that this was a “narrow” exception, based on the extreme circumstance in this case. Thus, the Court held that Mauro’s anti-SLAPP motion was properly denied.

Gates v. Discovery Communications, Inc.
California Supreme Court, 2004
34 Cal.4th 679, 21 Cal.Rptr.3d 663, 101 P.3d 552

Gates had been convicted of accessory after the fact to a murder and served three years in prison. Several years later Discovery produced a program about the crime, portraying Gates’s involvement. After the program was broadcast, Gates sued Discovery for defamation and invasion of privacy. The trial court granted Discovery’s demurrer to the defamation cause of action but denied its demurrer to the complaint for invasion of privacy. Discovery then filed an anti-SLAPP motion to strike the latter complaint; the court denied the motion, finding that Discovery had failed to demonstrate that its account of the crime was newsworthy, thus making it likely that Gates would prevail on his complaint for invasion of privacy. The appellate court’s reversal was upheld, since Discovery’s report is protected by the First Amendment and current case law would make it impossible for Gates to prevail on his claim.

Jarrow Formulas, Inc. v. LaMarche
California Supreme Court, 2003
31 Cal.4th 728, 3 Cal.Rptr.3d 636, 74 P.3d 737

The court affirms the Court of Appeal’s decision that a malicious prosecution action is not exempt from scrutiny under the state’s anti-SLAPP law.

Ketchum v. Moses
California Supreme Court, 2001
24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735

Ketchum sued his tenant Moses for allegedly filing false reports with government agencies about the condition of Ketchum’s property. Moses prevailed on a special motion to strike Ketchum’s complaint. Moses had a contingency fee contract with his attorney; if the anti-SLAPP motion failed, the attorney would receive no fee. The trial court awarded attorney’s fees, as required by the anti-SLAPP statute, and included a fee enhancement to reflect the risk of nonpayment in a contingency contract. It later supplemented this award with additional fees and costs after Ketchum attempted to challenge the fee award. The Court of Appeal reversed. The Supreme Court affirms the judgement of the Court of Appeal but criticizes the rationale of the Court of Appeal. A successful movant of an anti-SLAPP motion is entitled not only to attorney fees incurred in the pursuit of the anti-SLAPP motion, but also to fees incurred in litigating the award of attorney fees. While attorney fees incurred in pursuit of an anti-SLAPP motion may be enhanced to reflect contingent risk, fees incurred after a successful motion may not be so enhanced because an award of fees is mandatory under the anti-SLAPP statute and therefore there is no risk of nonpayment.

Kibler v. Northern Inyo County Local Hospital District
California Supreme Court, 2006
39 Cal.4th 192, 46 Cal.Rptr.2d 41, 138 P.3d 193

Physician George Kibler sued defendant hospital and its employees for defamation and other torts after defendants addressed complaints in a peer review meeting that Kibler was verbally abusive and physically threatening at work, resulting in his temporary suspension. Both the trial and appellate courts granted the hospital’s special motion to strike Kibler’s complaint.

The California Supreme Court reviewed the case to establish whether a hospital peer review proceeding was “any other official proceeding authorized by law” under 425.16(e)(2). The court concluded that peer review actions, mandated by the Business and Professions Code, function as a quasi-judicial proceeding and are within the ambit of anti-SLAPP protection. The court affirmed the granting of defendant’s anti-SLAPP motion.

Navellier v. Sletten
California Supreme Court, 2002
29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703
Note:  This case was reviewed together with Equilon Enterprises, LLC v. Consumer Cause, Inc. and City of Cotati v. Cashman

Plaintiffs sued Sletten for a variety of causes, including breach of contract for filing counterclaims in an earlier lawsuit in federal court. Sletten moved to strike this cause of action as a SLAPP, claiming that his counterclaims were protected under the First Amendment’s right of petition. The Court of Appeal (in an unpublished decision) concluded that Sletten’s counterclaims were not a “valid exercise” of that right, as required by the anti-SLAPP statute, since he had earlier waived his right to sue Navellier in a “release of claims” as a condition of return to employment. The Supreme Court reverses, holding that Sletten had met his threshold burden of demonstrating that Navellier’s action for breach of contract “is one arising from the type of speech and petitioning activity that is protected by the anti-SLAPP statute.” (See follow-on decision in Navellier v. Sletten, First District Court of Appeal.)

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism
California Supreme Court, 3/22/18

A defendant must file a special motion to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action, pursuant to CCP § 425.16(f), subject to the trial court’s discretion under that subdivision to permit late filing (rejecting contrary ruling in Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298).

Oasis West Realty, LLC v. Goldman
California Supreme Court, 2011
51 Cal.4th 811, 124 Cal.Rptr.3d 256, 250 P.3d 1115

Plaintiff sued its former attorney and his law firm for breach of fiduciary duty and related claims.  The attorney had represented the client in obtaining approval for a redevelopment project.  After the representation ended, the attorney campaigned against the city council’s approval of the redevelopment project by soliciting signatures on a referendum petition.  The trial court denied defendants’ anti-SLAPP motion, holding that the anti-SLAPP law did not apply.  The Court of Appeal reversed, holding that the claims arose from protected petitioning activity and plaintiff has not shown a probability of prevailing on its claims.  The Supreme Court reversed the Court of Appeal.  Citing the Court’s  “inherent, primary authority over the practice of law,” the Court proceeded directly to the second “prong” (whether plaintiff has shown a probability of prevailing on its claims) without addressing the first “prong” (whether the anti-SLAPP law applies).  It found that plaintiff had met its burden on the second “prong,” holding that from the undisputed facts, it was reasonable to infer that the attorney relied on confidential information in opposing the project, the requirement that a lawyer not misuse a client’s confidential information applied to discussion of public issues, and such misuse of information was not protected speech under the First Amendment.

Parrish v. Latham & Watkins
California Supreme Court, 2017
3 Cal.5th 767, 400 P.3d 1

The denial of summary judgment barred a subsequent malicious prosecution action under the interim adverse judgment rule, notwithstanding a finding of bad faith.

Park v. Board of Trustees of California State University
California Supreme Court, 2017
2 Cal.5th 1057, 98 Cal. Rptr. 859, 393 P.3d 905

Professor Sungho Park sued the California State University, challenging its decision to deny him tenure, asserting that it was discriminatory.  The University filed an anti-SLAPP motion, which was denied by the trial court, holding that the anti-SLAPP statute did not apply.  In a 2-1 decision, the Court of Appeal reversed, holding that the university could invoke the anti-SLAPP law because the professor’s lawsuit was based on communications the university made in the course of arriving at its decision to deny tenure, which were made in connection with an official proceeding.

In a unanimous opinion, the California Supreme Court reversed the Court of Appeal.  The Court held that “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself  is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”  The Court disapproved of three Court of Appeal opinions, Nesson v. Northern Inyo County Local Hospital District, DeCambre v. Rady Children’s Hospital-San Diego, and Tuszynska v. Cunningham.

Rusheen v. Cohen
California Supreme Court, 2006
37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713

Rusheen sued Cohen for abuse of process, for allegedly filing false declarations on the issue of service, and conspiring to execute the resulting default judgment against Rusheen. Cohen filed an anti-SLAPP motion, asserting that Cohen’s conduct was privileged under Civil Code section 47(b) as communications in the course of a judicial proceeding. The trial court agreed and granted the motion. The appellate court reversed on the grounds that executing on the improper default judgment was unprivileged, noncommunicative conduct.

The California Supreme Court reversed, holding that the anti-SLAPP motion should have been granted. It concluded that where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related noncommunicative acts (i.e., act of levying).

S.B. Beach Properties v. Berti
California Supreme Court, 2006
39 Cal.4th 374, 46 Cal.Rptr.3d 360, 138 P.3d 713

When plaintiffs voluntarily dismissed their entire action without prejudice before defendants filed an anti-SLAPP motion, defendants could not recover attorney fees and costs pursuant to 425.16, subsection (c).

Simpson Strong-Tie Co. v. Gore
California Supreme Court, 2010
49 Cal.4th 12, 109 Cal.Rptr. 3d 329, 230 P.3d 1117

In 2004, defendant attorney Pierce Gore placed several newspaper ads advising deck owners of potential legal claims against plaintiff Simpson Strong-Tie. The company sued Gore, listing a litany of claims like trade libel and unfair business practices, for implying that the company’s galvanized screws were defective, and sought to enjoin the ad. When Gore filed a special motion to strike, Simpson Strong-Tie invoked C.C.P. §425.17(c), the commercial speech exception. The trial court rejected Simpson Strong-Tie’s argument and granted the special motion to strike, which was upheld on appeal.

In affirming the Court of Appeal, the California Supreme Court looked at the parameters of the commercial speech exception under 425.17(c). The Court held that the burden of showing the applicability of 425.17(c) falls on the plaintiff. The Court then clarified that the purpose of the exception was to stop businesses from using advertising to “trash talk” competitors. Gore sold legal services, not screws—he was not a business competitor with defendant, thus his ad was not the type of speech targeted by subsection (c). Under the two-step analysis, the Court found that Gore’s speech was protected.

Soukup v. Law Offices of Herbert Hafif
California Supreme Court, 2006
39 Cal.4th 260, 46 Cal.Rptr.3d 638. 139 P.3d 30

Plaintiff Peggy Soukup filed a SLAPPback action for abuse of process and malicious prosecution against her former employers after prevailing on her anti-SLAPP motion. Plaintiffs’-turned-defendants’ attorney Herbert Hafif then filed a special motion to strike her complaint.

The California Supreme Court considered the legislative purpose of C.C.P. §425.18(h), which precludes a SLAPPback defendant from filing a special motion to strike if the underlying action was illegal as a matter of law; the statute also “stack[s] the procedural deck in favor” of SLAPPback plaintiffs. Finding that the SLAPP Hafif filed against Soukup did not violate various statutes and was not a “sham” lawsuit, the court ruled that Hafif did not break the law in asserting claims against Soukup, despite the fact that his claim was dismissed as a SLAPP. Ultimately, the court found that Soukup showed a probability of prevailing on the malicious prosecution claim and remanded the case for further proceedings.

In a separate motion, Hafif’s anti-SLAPP appellate counsel Ronald Stock sought to strike Soukup’s claim, arguing that his limited involvement in appealing the anti-SLAPP motion was insufficient to sustain a malicious prosecution claim. The Court rejected this argument based on the evidence.

Taus v. Loftus
California Supreme Court, 2007
40 Cal.4th 683, 54 Cal.Rptr.3d 775. 151 P.3d 1185

Nicole Taus sued defendant authors for defamation and other torts after a journal published articles relating to a psychologist’s study about her as a child. The California Supreme Court reversed the appellate court on several grounds, but affirmed its finding that Taus could proceed with her claim of improper intrusion into private matters.

While recognizing that it is common practice for reporters to conceal motives in newsgathering, the Court drew a distinction, finding that this protection was not so broad as to allow a person to falsely pose as the colleague of a mental health professional to elicit highly personal information about a subject from the subject’s relative or close friend. While a single claim survived on appeal, the Court awarded costs and fees to defendants because the majority of plaintiff’s claims should have been dismissed under the anti-SLAPP statute.

The Court also expressed reservations about the appellate court’s unequivocal conclusion that Taus was not a limited public figure based on her consent to be the subject of a prominent medical study, and revealing her face and voice in publicly viewed materials.

Varian Medical Systems, Inc. v. Delfino
California Supreme Court, 2005
35 Cal.4th 180, 25 Cal.Rptr.3d 298, 106 P.3d 958

“The perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion.”

Vargas v. City of Salinas
California Supreme Court, 2009
46 Cal.4th 1, 92 Cal.Rptr.3d 286, 205 P.3d 207

The City of Salinas distributed a newsletter explaining Measure O, a contentious ballot measure that would phase out the city’s utility tax. Supporters of the ballot measure sued the city for expending public funds on the newsletter, claiming it was an impermissible election communication as defined by the Government Code.

The California Supreme Court affirmed the appellate court’s granting of defendants’ anti-SLAPP motion, but based its conclusion on a different standard than the Court of Appeal. The Court clarified that government entities and public officials are entitled to anti-SLAPP protection. The Court concluded that plaintiffs failed to establish a prima facie case that defendants’ conduct was unlawful and affirmed the Court of Appeal’s judgment granting defendants’ anti-SLAPP motion.

Wilson v. Parker, Covert & Chidester
California Supreme Court, 2002
28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733
Note:  Opinion overruled in part by Assembly Bill 1158 (2005), amending Code of Civil Procedure section 425.16(b)(3).

The issue presented is whether, in an action for malicious prosecution, denial of an anti-SLAPP motion in the underlying action establishes that there was probable cause to support the action, thus precluding a suit for malicious prosecution. The court says it does when the denial is predicated on a finding that the action had potential merit.

Zamos v. Stroud
California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

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Site last updated April 4, 2018 @ 12:53 pm; This content last updated March 31, 2018 @ 3:23 pm