In the Court of Appeal below in this case (Maj. opn. by Dossee, J.; Stein, J., conc.; dis. opn. by Strankman, P.J.), the majority made the following observations in concluding that a defendant seeking anti-SLAPP protection under section 425.16, subdivision (e)(1) or (2), must separately demonstrate that such statement was made in a legislative, executive, judicial or other "official" proceeding involving a public issue or issue of public interest:
"The remedy authorized by the anti-SLAPP statute is a special motion to strike any cause of action which arises from an 'act of [the defendant] in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .' (§ 425.16, subd. (b); see generally Wilcox v. Superior Court (1994) 27 Cal.App.4th 809.)
"The special motion to strike a SLAPP suit is a drastic and extraordinary remedy. It not only allows an early dismissal of the plaintiff' s complaint; it also authorizes an award of attorney fees to the prevailing defendant. (§ 425.16, subds. (b), (c).) . . . .
". . . . . . . . . . .
"Subdivision (e) of section 425.16 [as in effect and controlling in the instant case] defines an '"act in furtherance of a person's right of petition or free speech . . . in connection with a public issue"' to include '[1] any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [2] any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or [3] any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.'
"In the present case, respondent ECHO contends that plaintiffs' lawsuit qualifies as a SLAPP suit because it is based upon petitioning activities which fall within phrases [1] and [2] of section 425.16, subdivision (e). [FN 2] ECHO asserts that statements made in assisting tenants Ford and Bond to complain to HUD and to file small claims court actions, including ECHO' s efforts to resist plaintiffs' subpoenas, qualify as statements within an official proceeding under phrase [1]. Further, ECHO asserts that statements made in response to plaintiffs' efforts to challenge ECHO' s public funding were connected to the issues under consideration by HUD or the courts and therefore fall within phrase [2].
"On two previous occasions, this division has been called upon to examine the scope of the anti-SLAPP statute, and on both occasions we gave the statute a narrow interpretation. First, in Zhao v. Wong [, supra,] 48 Cal.App.4th [at pp.] 1120-1121, 1129, we concluded that in light of the legislative history and the declared legislative purpose of the anti-SLAPP statute, the statute applies only to lawsuits which are based upon activities closely tied to the right to petition and the freedom of speech. [FN 3] We emphasized that the challenged petition or speech must have been ' in connection with a public issue.' (Zhao, supra, 48 Cal.App.4th at p. 1127.) Specifically, we held in Zhao that within phrase [2] of section 425.16, subdivision (e), the 'issue under consideration or review by a legislative, executive, or judicial body' must be a public issue. (48 Cal.App.4th at p. 1127.) More recently, in Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. [, supra,] 50 Cal.App.4th [at pp.] 1638-1639, we followed the reasoning of Zhao to hold that within phrase [1] the statements made before an official proceeding must be on a public issue. In sum, we have concluded that the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding. (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127.)
"Recently, Division Four of this district has disagreed with our interpretation of the anti-SLAPP statute. (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1045-1048; see also Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650.) The Braun court reasoned that the Legislature equated a public issue with the authorized official proceeding to which it connects. Hence, it is the setting itself -- an official proceeding -- that makes the issue a public issue: 'all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.' (Braun, supra, at p. 1047.)
"We cannot accept this construction of the anti-SLAPP statute. Certainly not every issue before the courts and other official bodies is a public issue, and we find it doubtful that the Legislature thought otherwise. (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639; see Zhao v. Wong, supra, 48 Cal.App.4th at p. 1131.) Furthermore, such a broad reading of the anti-SLAPP statute would have legal consequences beyond the statute' s declared purpose, as the anti-SLAPP statute would supplant the statutory privilege for statements made in official proceedings (Civ. Code, § 47, subd. (b)). (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639; see Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1129-1130.) We remain committed to our earlier position that a lawsuit qualifies as a SLAPP suit only if it challenges a statement on a public issue made in an official proceeding or a statement made in connection with a public issue under review in an official proceeding. (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127.)"
Although Presiding Justice Strankman dissented below, he disagreed only with the majority's conclusion that the proceedings at which statements were made that were attributed to ECHO' s employees and allegedly slandered plaintiff Briggs did not involve a public issue. Presiding Justice Strankman joined in the majority' s threshold conclusion that a public issue showing is separately required under subdivision (e)(1) or (2) of section 425.16 in order for the special anti-SLAPP remedy to apply. The portion of his dissenting opinion relevant here read as follows:
"I agree with the majority that a defendant qualifies for anti-SLAPP protection only if the challenged suit arose from the defendant' s petitioning or speech 'in connection with a public issue.' . . . [¶ ] The Legislature expressly declared that its intent in enacting the anti-SLAPP statute was 'to encourage continued participation in matters of public significance' and thus granted a person protection from lawsuits arising from 'any act of that person in furtherance of the person's right of petition or free speech . . . in connection with a public issue.' (Code Civ. Proc., § 425.16, subds. (a), (b).) If the statute said no more, there would be no question that a defendant lodging an anti-SLAPP motion must make a prima facie showing that plaintiff' s suit arises from an act in furtherance of defendant's right of petition or free speech in connection with a public issue. But the statute further provides that an '"act in furtherance of a person's right of petition or free speech . . . in connection with a public issue"' includes '[1] any . . . statement . . . made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [2] any . . . statement . . . made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or [3] any . . . statement . . . made in a place open to the public or a public forum in connection with an issue of public interest.' (Code Civ. Proc., § 425.16, subd. (e).)
"The public issue, or public interest, element is expressly included in only the third definitional category of the anti-SLAPP statute, which has led some courts to conclude that the statute protects any statement made before or in connection with an official proceeding even if the statement does not concern a public issue. (E.g., Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650.) We have rejected this interpretation of the anti-SLAPP statute as contrary to the express declaration of legislative intent and general statutory provision protecting a person' s exercise of constitutional rights of petition and free speech in connection with a public issue. (Code Civ. Proc., § 425.16, subds. (a), (b); Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th 1633, 1639; Zhao v. Wong [, supra,] 48 Cal.App.4th 1114, 1127.) I agree with the majority that ' the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding. (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127.)' [Citation.]"
The majority emphasize that in 1997 the Legislature amended section 425.16, to provide that the statute "shall be broadly construed." (§ 425.16, subd. (a), as amended by Stats. 1997, ch. 271, § 1.) The majority concede the 1997 amendment "effect[ed] no substantive changes to the anti-SLAPP scheme . . . ." (Maj. opn., ante, at p. 15.) I remain unconvinced the legislative intent behind the statute, as originally enacted or as amended in 1997, was to expand the categories of litigation qualifying as SLAPP suits in as broad and open-ended a manner as does the majority's rationale and holding in this case.
The 1997 amendment added a single sentence (italicized below) to the end of subdivision (a) of section 425.16, which currently reads: "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." (Italics added.)
Obviously, the opening clause of the single sentence added by the 1997 amendment -- "To this end . . . " -- reflects the Legislature's intent that the remedial provisions of the anti-SLAPP legislation be "broadly construed" within the context of the restricted scope of the statement of legislative purpose contained in subdivision (a). (See also Zhao v. Wong, supra, 48 Cal.App.4th at p. 1129.) If the Legislature had instead desired to overrule those decisions of the Courts of Appeal that have construed section 425.16, subdivision (e)(1) and (2), as requiring demonstration of involvement of a public issue, it could have easily done so in precise and explicit terms. To my mind, the majority's analysis and holding serve neither the letter nor spirit of the 1997 amendment. Not only does the rule set down in this case fail to "construe[] broadly" the statute' s remedial provisions consistent with the ends described in the carefully drawn statement of legislative purpose found in section 425.16, subdivision (a), it literally reads that statement of legislative purpose right out of the statutory scheme by recognizing sweeping new categories of litigation, bearing no resemblance to the abusive litigation practices described in that subdivision, that will henceforth automatically qualify as SLAPP suits under subdivision (e)(1) and (2).
Finally, the majority's expansive reading of section 425.16, subdivision (e)(1) and (2), may have legal consequences well beyond the statute's declared purpose, as the anti-SLAPP legislation thusly interpreted stands to supplant Civil Code section 47, subdivision (b)'s absolute litigation privilege for communications made in any legislative, judicial, or other official proceeding authorized by law. (See Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639; Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1129-1130.) From a practical standpoint, why, under the majority's rationale, would a defendant move, at his own expense, to dismiss an unmeritorious lawsuit based on Civil Code section 47, subdivision (b)'s otherwise applicable litigation privilege for statements made in official proceedings, when, under the majority's expansive interpretation of the anti-SLAPP legislation, he could instead move to specially strike the suit as a retaliatory SLAPP suit and thereby immediately cut off discovery in the litigation and recover his attorney fees if dismissal is ultimately ordered?
The majority suggests it would be "anomalous" for "direct petition activity" that is "not focused on an inherently 'public' issue" to be absolutely privileged under the litigation privilege of Civil Code section 47, subdivision (b), and yet not otherwise "entitled to the procedural protections of the anti-SLAPP law." (Maj. opn., ante, at p. 18.) Under the majority' s rationale, the scope of the anti-SLAPP legislation is seemingly coextensive with, if not broader than, the litigation privilege embodied in Civil Code section 47, subdivision (b). Could that have been the intent of the Legislature in enacting remedial legislation specifically designed and intended to target the abusive practice of SLAPP suits?
The majority suggest in conclusion that, "If we today mistake the Legislature's intention, the Legislature may easily amend the statute." (Maj. opn., ante, at p. 21.) Of course the converse is true as well -- were we to construe section 425.16, subdivision (e)(1) and (2), as requiring demonstration of the involvement of a public issue in the legislative, executive, judicial or "official" proceedings covered under those clauses of subdivision (e), then if the Legislature disagreed with that construction, it could amend those clauses to more clearly and explicitly convey that no such separate showing is required. I would rather this court risk reversal by the Legislature in construing the provisions of subdivision (e)(1) and (2) consistently with the concisely-drafted statement of statutory purpose found in subdivision (a), than to interpret those two clauses so broadly as to virtually nullify the very purpose and spirit of the anti-SLAPP legislation by holding that every lawsuit based on any actionable word uttered or written in connection with any legislative, executive, judicial, or other "official" proceeding in the state of California will henceforth, as a matter of law, be deemed a retaliatory SLAPP suit.
I would hold, consistent with the unanimous determination of the Court of Appeal below, that the Legislature intended involvement of a public issue or issue of public interest be demonstrated under subdivision (e)(1) and (2) of section 425.16.
BAXTER, J.
I CONCUR: BROWN, J.