Stages of a SLAPP Suit
If you aren’t a lawyer, you may have figured out that the lawsuit filed against you is a SLAPP, but you probably don’t know how a SLAPP suit works and what the procedural stages of the lawsuit are. This post is intended to help you understand what to expect as the defendant in a SLAPP. (And if you aren’t sure whether the lawsuit filed against you is a SLAPP, please read this first or contact CASP.) Here’s how the suit will probably go, step by step:
1. Demand letter — Often, a SLAPP filer or his/her attorney will send a letter (or email) before filing the lawsuit. This letter will demand that you cease the speech or petition activity, and will threaten that if you do not, a lawsuit will be filed against you.
2. Lawsuit is filed with the court — Then, the SLAPP filer or his/her attorney will draft a summons and complaint, and file these documents with the court. The summons is a court order requiring you to respond to the lawsuit. The complaint contains the allegations being made against you.
3. You are served with the lawsuit — In order for the lawsuit to have any effect, it must be served upon you. Usually, the SLAPP filer/plaintiff is required to serve you personally, meaning that he or she or (more typically) a hired process server must physically hand the summons and complaint to you in person.
4. Your lawyer files a response to the complaint — You have 30 days from the date of service to file a response to the complaint. If you do not, the SLAPP filer/plaintiff can ask that the court find you in “default,” meaning that you can no longer file a response to the lawsuit without the court’s permission, and a default judgment may be entered against you. This means you must move quickly after you have been served to retain an attorney to file your response. (If you think the lawsuit filed against you is a SLAPP, and you have been sued in California state or federal court, please contact CASP.)
5. Your lawyer files a special motion to strike (also called an anti-SLAPP motion) — This is the most important part of the case for you as the defendant in the SLAPP. By filing a special motion to strike with the court, your lawyer is asking the judge to find that the plaintiff has sued you for exercising your free speech and/or petition rights, and that the plaintiff has failed to show that his/her suit has merit. Depending upon the circumstances of your case, your lawyer may file this motion as your response to the complaint, or he/she may first file a response that is not a special motion to strike (typically an “answer,” sometimes a “demurrer”), and file the special motion to strike later. Either way, you have 60 days after service of the summons and complaint to file your special motion to strike. When the motion is filed, your lawyer will set a hearing date with the court. At the hearing, the judge will decide whether or not to grant your special motion to strike.
6. The court decides the special motion to strike — Based upon the motion papers, the plaintiff’s opposition papers, the reply papers filed in response to the opposition, and any oral argument at the hearing, the judge will decide whether or not to grant the special motion to strike. If the special motion to strike is granted, the lawsuit is automatically dismissed, and the defendant has won. If the motion is denied (not granted), this means the anti-SLAPP law does not apply and the suit will continue on as any typical civil suit does: first, what is called “discovery” will take place, during which the plaintiff will demand information and documents from the defendant, and take the defendant’s deposition; the defendant will also have the right to seek discovery from the plaintiff. Eventually the lawsuit may go to trial if a settlement is not reached.
7. Appeals — If they choose to do so, either the plaintiff or defendant in the SLAPP suit may file an appeal of the court’s decision on the special motion to strike. By filing an appeal, the plaintiff or defendant is taking the case to a higher court (the court of appeals) to determine whether the lower court judge correctly decided the special motion to strike. Although most appeals are unsuccessful, if the court of appeals finds that the lower court made the wrong decision, the ruling on the special motion to strike will be reversed.
8. Motion for attorney’s fees and costs — If you are successful on your special motion to strike, you are automatically entitled to the attorney’s fees and costs you incurred defending against the SLAPP. This means that your attorney will file a motion asking the court to determine the amount of fees and costs to be awarded in your favo, and against the SLAPP filer/plaintiff. The SLAPP filer must then pay these fees and costs to you and your lawyer as compensation for bringing the SLAPP. (This award only compensates you for the fees and costs involved in bringing the lawsuit; it will not compensate you for any other damages you may have suffered as a result of being sued. To recover those damages, you will need to bring a separate lawsuit against the SLAPP filer.)
On a related note, also see our post on what to do when your internet service provider tells you that someone has served a subpoena seeking your personal identifying information. Often, you will receive a notice like this from your ISP before being served with a SLAPP suit.