Daily Journal

January 22, 2001

Speech Defense

Recent Decisions Broadly Interpret SLAPP Statute

By Mark Goldowitz

Two appellate opinions issued last month implement a broad construction of the California anti-SLAPP law, Code of Civil Procedure Section 425.16. Section 425.16 protects against SLAPPs (Strategic Lawsuits Against Public Participation) - lawsuits that arise from a defendant's petition or speech activity.

Section 425.16 allows defendants who are SLAPPed to file a special motion to strike the complaint at the beginning of the case. The defendant bears the initial burden of making a prima facie showing that the complaint arises from the defendant's petition or speech activity. If the defendant makes this showing, the burden shifts to the plaintiff to make a prima facie showing, by admissible evidence, of a probability of prevailing on its claims. If the plaintiff cannot make this showing, the motion is to be granted, and the complaint dismissed. Section 425.16(b)(1); Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).

While the motion is pending, discovery is stayed. Section 425.16(g). The prevailing defendant on a special motion to strike is entitled to recover his or her reasonable attorney fees. Section 425.16(c).

In 1997, concerned that some courts were narrowly interpreting the anti-SLAPP law, the Legislature unanimously amended the law to expressly direct that it be construed broadly. Section 425.16(a). Subsequently, the California Supreme Court, in Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (1999), in its first opinion under the anti-SLAPP law, further emphasized that the statute should be broadly construed.

The two opinions issued last month show that courts are following this legislative direction. In Equilon Enterprises LLC v. Consumer Cause Inc., 85 Cal.App.4th 654 (2000), the defendant sent two oil companies notices of intent to sue them for groundwater pollution in violation of Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act).

Plaintiff Equilon (the oil companies' successor) filed a pre-emptive lawsuit against the defendant in Los Angeles Superior Court, seeking a declaration that the defendant's Proposition 65 notices were invalid and an injunction. The defendant filed a special motion to strike the complaint as a SLAPP, which was granted by the trial court.

On appeal, Attorney General Bill Lockyer, who as a state senator authored the bill that enacted the anti-SLAPP law in 1992, submitted an amicus brief in support of the defendant. The 2nd District Court of Appeal, Division Two, affirmed. It held that the complaint was subject to the anti-SLAPP law because it arose from statements made in connection with an issue of public interest (alleged groundwater pollution) and an official proceeding authorized by law (Proposition 65).

Equilon argued that its suit was not a SLAPP because its motives in suing the defendant were pure, not intended to curtail its right to petition. The court rejected this attempt to engraft "a motive or intent requirement that is not contained in the plain language of section 425.16."

The court also found that Equilon had not established a probability that it would prevail on its claims for two reasons. First, declaratory relief was not necessary or proper under all the circumstances because of the chilling effect that allowing such pre-emptive litigation would have on water-pollution lawsuits by citizen and environmental grounds. Second, the defendant's Proposition 65 notices were privileged under Civil Code Section 47(b).

In Damon v. Ocean Hills Journalism Club, 2000 Daily Journal D.A.R. 13185 (2000), the plaintiff was the general manager of a planned-development residential community for seniors with about 3,000 residents. His management style displeased many homeowners and provoked sustained criticism, which eventually led to his leaving.

The plaintiff filed a defamation complaint in San Diego Superior Court against six members of the local homeowners' association (who had written letters or articles published in a homeowners newsletter criticizing the plaintiff's performance as general manager), against the publisher of the newsletter and against two homeowners'-association board members who made comments during board meetings critical of the plaintiff's performance as general manager and questioned his competency and veracity.

The defendants filed a special motion to strike the complaint as a SLAPP, which was granted by the trial court. The 4th District, Division One, affirmed. In the published portion of its opinion, it held that the complaint was subject to the anti-SLAPP law because it arose from statements made in a public forum in connection with an issue of public interest. In the unpublished portion of its opinion, it held that the plaintiff had not established a probability of prevailing on his claims.

The court found that the complaint was covered by Section 425.16(e)(3), which covers statements or writings "made in a place open to the public or a public forum in connection with an issue of public interest." The court found that the "two locations where the alleged defamatory statements were made - at the Board meetings and in the Village Voice newsletter - were open to the public and constituted 'public forums.'" It noted that the meetings of the homeowners'-association board were required by law to be open to all association members.

The court brushed aside the plaintiff's argument that the newsletter could not be considered a public forum because it was essentially a mouthpiece for a small group of homeowners intent on putting forward their own views. The court noted that the public-forum requirement should be broadly construed and, thus, should include publications with a single viewpoint that are a vehicle for communicating a message concerning public matters to a large and interested community.

The court rejected two earlier opinions that more narrowly construed the public-forum requirement, holding that they predated the 1997 amendment requiring a broad interpretation of the anti-SLAPP law. Zhao v. Wong, 48 Cal.App.4th 1114 (1996), and Lafayette Morehouse Inc. v. Chronicle Publishing Co., 37 Cal.App.4th 855 (1995).

The court also found that the defendants' allegedly defamatory statements concerned issues of public interest. It noted that the definition of "public interest" under the anti-SLAPP law has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.

It found that the defendants' statements concerned the decision about whether to keep the homeowners' association's general manager and his competency to manage the association, which concerned the very manner in which a group of more than 3,000 individuals would be governed and which was of vital importance to each individual and the community as a whole. Finally, the court rejected the plaintiff's argument that the anti-SLAPP law did not apply because the primary purpose of the plaintiff's lawsuit was to vindicate damage to his reputation and not to interfere with the defendants' exercise of their free-speech rights. As in the Equilon case, the court in Damon held that nothing in the anti-SLAPP law required the court "to engage in an inquiry as to the plaintiff's subjective motivations before it may determine the anti-SLAPP statute is applicable."

The holding in Equilon and Damon that the defendant need not show the plaintiff's subjective intent for the anti-SLAPP statute to apply runs counter to language in an earlier case that suggests that for the anti-SLAPP statute to apply, the defendant must show that the plaintiff's true goal is to interfere with and burden the defendant's exercise of his free-speech and petition rights. Foothills Townhome Ass'n v. Christiansen, 65 Cal.App.4th 688 (1998).

These two opinions reflect that courts now do seem to be taking to heart the direction from the Legislature and the California Supreme Court that the anti-SLAPP law be construed broadly.

Mark Goldowitz is a sole practitioner in Oakland and is the director of the California Anti-SLAPP Project. He specializes in defenses against SLAPPs. He represented the defendants in Briggs and Wollersheim.

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