Daily Journal

Oct 25, 1999

New Law Equalizes SLAPP Motion Appeal Rights

By Mark Goldowitz

On Oct. 10, Gov. Gray Davis signed AB1675 into law. The legislation amends Section 425.16 of the Code of Civil Procedure, California's law to combat strategic lawsuits against public participation, or SLAPPs. 1999 Cal.Stat. 960. The Legislature unanimously passed AB1675 and declared it to be urgency legislation; therefore, it took effect immediately.

The anti-SLAPP law was enacted in 1992 in response to the increase in litigation undertaken to retaliate against or punish those who engage in acts furthering their constitutional right to petition the government or speak freely on issues of public concern. Section 425.16(a).

The anti-SLAPP statute allows SLAPP targets (defendants) to file a special motion to strike the complaint as a meritless SLAPP at the beginning of the case. Section 425.16(b)(1). Filing the special motion to strike stays discovery. Section 425.16(g).

Once the defendant makes a prima facie showing that the lawsuit arises from petition or speech activity covered by Section 425.16, the burden shifts to the plaintiff to show, by admissible evidence, a probability of prevailing. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996). Under Wollersheim, unless the plaintiff meets that burden, the complaint is to be dismissed by the court. Defendants who prevail on a special motion to strike are entitled to recover their attorney fees and costs. Section 425.16(c).

AB1675 strengthens the statute by removing a significant disparity in the right of SLAPP filers (plaintiffs) and SLAPP targets to obtain appellate review of rulings on special motions to strike. This disparity results from the one-final-judgment rule, which precludes appellate review of interim rulings until a final judgment has been entered. Section 904.1; Morehart v. County of Santa Barbara, 7 Cal.4th 725 (1994).

SLAPP filers can immediately appeal the dismissal of their lawsuit as a SLAPP, because dismissal ends the case. Section 904.1(a). On the other hand, before AB1675, the only prejudgment challenge SLAPP targets could mount to the denial of a special motion to strike was a petition for writ of mandate, which is discretionary, disfavored and rarely successful.

Thus, while the anti-SLAPP law was intended to protect the targets of SLAPPs, it gave rise to an anomalous situation whereby SLAPP filers had the right to appeal adverse trial court decisions, but SLAPP targets effectively did not.

AB1675 changes this by adding subdivision (j) to the anti-SLAPP law and amending Section 904.1 to make orders granting or denying a special motion to strike appealable. The appeal of such an order will stay the related proceedings in the trial court. Section 916(a).

AB1675 also adds a simple reporting requirement, which requires any party filing or opposing a special motion to strike to transmit to the Judicial Council via fax or e-mail a copy of the endorsed-filed caption page of the motion opposition or any appeal, as well as any orders under the anti-SLAPP law. Section 425.16(k)(1).

AB1675 also requires the Judicial Council to maintain these documents as public records. Section 425.16(k)(2). The collection of these documents will allow the tracking of the number and outcome of special motions to strike SLAPPs in California. This information will help the public and the Legislature assess how well the anti-SLAPP law is working and whether further improvements should be made to it.

AB1675 represents the second time in the last three years that the Legislature has amended Section 425.16 to strengthen its protection of First Amendment rights. In 1997, the Legislature unanimously amended subdivision (a) of the anti-SLAPP law, directing that it be construed broadly to apply to all petition and petition-related activity. The 1997 amendment also added a new subdivision (e)(4) to Section 425.16, which clarified that the anti-SLAPP law covers conduct as well as statements and writings.

This past January, the California Supreme Court issued its first opinion construing the anti-SLAPP law, directing that courts, "whenever possible, should interpret the First Amendment and section 425.16 in a manner 'favorable to the exercise of freedom of speech, not to its curtailment.' " Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106 (1999) (quoting Bradbury v. Superior Court, 49 Cal.App.4th 1170 (1996)).

The Supreme Court's Briggs opinion overruled three appellate opinions that construed the law narrowly to apply to such activity only if it involved a "public issue," Zhao v. Wong, 48 Cal.App.4th 1114 (1996); Linsco/Private Ledger v. Investors Arbitration Services, 50 Cal.App.4th 1633 (1996); and the Court of Appeal's opinion in Briggs.

The unanimous passage of AB1675 last month, on the heels on the unanimous 1997 amendment, demonstrates the Legislature's continuing concern about the use of SLAPPs as a means to chill the fundamental constitutional rights of petition and speech.

AB1675 was authored by the Assembly Judiciary Committee and championed by its chair, Assemblymember Sheila Kuehl. In response to Gov. Davis signing AB1675, Kuehl stated: "It doesn't mean much to have a First Amendment right to publicly criticize governmental action, or some toxic activity that will impact your neighborhood, if exercising that right can devastate you financially. This may seem technical, but without laws like this one in place, many of the freedoms guaranteed by the Constitution could be defeated though legal maneuvers brought by people with the financial ability to use the court system."

Mark Goldowitz, a sole practitioner in Oakland specializing in defenses under the anti-SLAPP law, represented the defendants in Briggs and Church of Scientology and is the founder and director of the California Anti-SLAPP Project, which was the primary organizer of the campaign to enact AB1675.

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