Daily Journal

March 13, 2001

Breadth and Limits

Recent Decisions Flesh Out the Parameters of the SLAPP Statute

By Mark Goldowitz

This January, there were five published opinions that arose from the California anti-SLAPP law (Code of Civil Procedure Section 425.16), which protects against Strategic Lawsuits Against Public Participation (SLAPPs) - lawsuits that arise from a defendant's petition or speech activity. These Court of Appeal opinions, two from Los Angeles, two from San Diego and one from San Francisco, illustrate both the breadth and the limits of the anti-SLAPP law. In addition, in late February, the California Supreme Court issued its second opinion under the anti-SLAPP law, Ketchum v. Moses, 2001 DJDAR 1969 (Cal. Feb. 26, 2001), which is not discussed here.

In Dowling v. Zimmerman, 85 Cal.App.4th 1400 (2001), the most complicated and important of these five opinions, the plaintiff, Peter Dowling, sued Connie Zimmerman, a lawyer who had successfully represented tenants of Dowling in three unlawful-detainer actions brought by Dowling.

The complaint, alleging defamation, misrepresentation and intentional and negligent infliction of emotional distress, was filed in San Diego Superior Court. The suit was based primarily on a letter that the defendant had sent on behalf of her clients to the local Townhouse Owners Association, complaining that the plaintiff had been harassing his tenants and had relied on a forged document to support his unlawful-detainer case. The suit also claimed that the defendant misrepresented facts in negotiations about the unlawful detainer.

The defendant filed a special motion to strike the complaint as a SLAPP. The trial court granted this motion and also awarded the defendant her attorney fees under Section 425.16(c). The plaintiff appealed, but did not file a bond.

The defendant moved to enforce the attorney-fee judgment by serving the plaintiff with a subpoena duces tecum and an order to appear at a judgment debtor's exam. The plaintiff filed a motion to quash the subpoena and vacate the order for the debtor's exam, which was denied by the trial court. The plaintiff filed a petition for a writ of supersedeas, challenging the trial court's denial of his motion to quash and vacate.

The 4th District Court of Appeal, Division One, affirmed the dismissal of the complaint as a SLAPP and denied the plaintiff's petition. The court held that complaint was subject to the anti-SLAPP statute under Section 425.16(e)(2) and (4), as petition-related activity and petition and speech in connection with a public issue, because it arose from the defendant's statements in connection with the pending unlawful-detainer action and arguably involved public issues of nuisance and safety.

The court also held that the plaintiff had failed to establish a probability of prevailing on his claims, as required by Section 425.16(b)(1), because the complaint was pleaded without the requisite specificity and because the defendant's letter and negotiation statements were privileged under Civil Code Section 47(b). The court also affirmed the award of attorney fees.

Noting that the fee provision of the anti-SLAPP law must be broadly construed, as required by Section 425.16(a), the court rejected the plaintiff's argument that the fee award should have been limited to the nominal retainer that the defendant had paid her counsel.

The court also denied the plaintiff's petition for writ of supersedeas, which sought to stay enforcement of the fee award under the anti-SLAPP law, holding, in the first published opinion to address this issue, that such a judgment was not stayed absent the filing of an appropriate appeal bond.

It based this conclusion on its finding that a fee award under the anti-SLAPP law was a judgment for "money or the payment of money" under Code of Civil Procedure Section 917.1(a)(1), such that a bond was required to stay enforcement pending appeal. The court construed Section 917.1(a)(1) in light of the legislative intent stated in Section 425.16(a) to broadly protect the right of petition. It noted that its conclusion would help deter SLAPP litigation in the appellate courts and thereby protect First Amendment rights.

In Paul for Council v. Hanyecz, 85 Cal.App.4th 1356 (2001), a candidate for re-election to the Laguna Niguel City Council sued defendants for violation of the Political Reform Act (Government Code Section 81000 et seq.) for influencing the election with illegal campaign contributions for one of the plaintiff's campaign opponents. The Los Angeles Superior Court granted the defendants' special motion to strike the complaint as a SLAPP and awarded them attorney fees. The plaintiff appealed.

The 2nd District, Division Three, reversed. The court held that the anti-SLAPP statute did not apply, because the complaint arose from the defendants' admittedly illegal campaign money-laundering activities, for which they were fined $94,000 by the Fair Political Practices Commission. The court stated that those activities were not a valid exercise of the defendants' constitutional rights of speech or petition and were not protected by the anti-SLAPP law. The court noted that if there had been a factual dispute as to the legality of the defendants' actions, it could not so easily have disposed of the defendants' motion.

In People ex rel. 20th Century Insurance Co. v. Building Permit Consultants Inc., 86 Cal.App.4th 280 (2001), the plaintiff sued the defendant in Los Angeles Superior Court for allegedly engaging in a scheme involving filing false and fraudulent insurance claims in connection with the Northridge earthquake of January 1994. The trial court denied the defendants' special motion to strike, and the defendants appealed.

The 2nd District, Division Four, affirmed. It held that although some of the defendants' allegedly false and fraudulent damage reports and repair estimates sent to the insurance company eventually were used in official proceedings or litigation, they were not created "before" or "in connection with an issue under consideration or review" by a government body, as provided in Section 425.16(e)(1) and (2). Therefore, the court ruled, the anti-SLAPP statute did not apply.

In City of San Diego v. Dunkl, 2001 Daily Journal D.A.R. 757 (2001), the plaintiffs (the city of San Diego and the owners of the San Diego Padres) filed declaratory-relief actions against the defendants, who were circulating a proposed initiative that would have made certain negative findings concerning an earlier city ordinance that had been adopted by the voters to enable funding and construction of a downtown ballpark-redevelopment project.

The plaintiffs sought declarations that the proposed initiative was invalid and should not be placed on the ballot. The trial court granted the plaintiffs' motions for summary judgment and ruled that the defendants' special motions to strike the lawsuits as SLAPPs were therefore moot. The defendants appealed.

The 4th District, Division One, affirmed. It held that the trial court properly ruled that the proposed initiative was invalid because it constituted an "administrative," rather than a "legislative," act. It then concluded that the trial court properly held that the defendants' special motions to strike were moot, since to grant those motions the court had to find that the plaintiffs had not shown a probability of prevailing on their claims, and because the plaintiffs' summary judgments were properly granted, there was no doubt that they were entitled to prevail on their claims.

In People v. Health Laboratories of North America, 2001 Daily Journal D.A.R. 2121 (2001), the district attorneys of Napa and Sonoma Counties, on behalf of the people, brought a suit against the manufacturer of a weight-loss product called Berry Trim Plus alleging false advertising. The defendant filed a special motion to strike the complaint.

The trial court denied the motion, based on Section 425.16(d), which provides that the anti-SLAPP statute does not apply to any enforcement action brought in the name of the people by the attorney general, district attorney or city attorney, acting as a public prosecutor.

The defendant appealed, arguing that the exemption of such public-prosecutor enforcement actions from the anti-SLAPP law violated the defendant's right to equal protection of the law. The 1st District, Division Five, affirmed, holding that the exemption was constitutional. The court ruled that the exemption was rationally related to a legitimate state interest in allowing public prosecutors to protect the health and safety of the citizenry through enforcement actions, "unemcumbered by delay, intimidation, or distraction."

In the slightly more than eight years that the anti-SLAPP law has been on the books, 41 published opinions have been issued under the statute. The five issued in January reflect the widely varied contexts in which parties have attempted to invoke the statute and the fact that there are still unresolved issues as to its scope and application.

Mark Goldowitz is a sole practitioner in Oakland and the director of the California Anti-SLAPP Project. He specializes in defenses against SLAPPs under Section 425.16.

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