- Author: Peter J. Gimino III
- Date:
- Category: Defamation Law , Law
The Shifting Burden of Proof Under California’s Anti-SLAPP statute
Since its first enactment in 1992, California Code of Civil Procedure section 425.16, known as the “anti-SLAPP” statute, has been the subject of a great deal of litigation in the California trial appellate courts. While the legal issues involved in such a motion are numerous and the fact issues giving rise to such a claim are immeasurable, there is a common threshold issue that must be addressed by litigants in all cases where it is possible that the anti-SLAPP statute will be invoked. That issue is the additional litigation cost a litigant may face to address anti-SLAPP claims at the inception of the case.
The California legislature enacted section 425.16 of the Code of Civil to protect against the use of the actions brought to chill the valid exercise of constitutional rights of freedom of speech and the right to petition, also known as Strategic Lawsuits Against Public Participation (or SLAPP complaints). (Code Civ. Proc. § 425.16 (a)).
In furtherance of public policy favoring the exercise of constitutional freedoms of speech and the right to petition, Section 425.16 establishes a statutory scheme designed to protect those interests while still preserving the rights of aggrieved parties to seek legal redress in proper cases. A special motion to strike must be brought early in a case, typically within 60 days of service of the complaint unless the Court deems a later date is proper. Cal. Civ. Proc. Code §425.16(f). The hearing on that motion must be scheduled not more than 30 days after service of the motion unless the Court requires otherwise due to docketing conditions. Cal. Civ. Proc. Code §425.16(f). In this way, the statute is designed to resolve the question of whether or not the case may proceed early in the litigation process.
Once a motion under Section 425.16 is filed, a burden shifting process is triggered:
(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
Cal. Civ. Proc. Code § 425.16(b)(1).
The Courts apply the following two step analysis in analyzing a motion to strike under Code of Civil Procedure Section 425.16: (1) a defendant must make a threshold prima facie showing that the acts of which plaintiff complains were taken in furtherance of defendant’s constitutional rights of petition or free speech in connection with a public issue; and (2) if the defendant satisfies this threshold burden, plaintiff must then demonstrate a reasonable probability of prevailing on the merits. (Du Charme v. Int’l Brotherhood of Electrical Workers, Local 45 (2003) 110 Cal. App. 4th 107, 112.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 89.)
Under the first prong, to determine whether a cause of action arises from activity within the scope of protection of the anti-SLAPP statute, “the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Wang v. Wal-Mart Real Estate Bus. Trust (2007) 153 Cal. App. 4th 790, 801, quoting Navellier v. Sletten, supra, 29 Cal. 4th at 90-92.) In conducting this analysis, the Court evaluates the “principal thrust or gravamen” of the complaint to determine the applicability of the anti-SLAPP statute. (Id. at 802 (citations omitted).)
In determining the gravamen of the claim, Courts must analyze the basis for the claim:
“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.”
(In re Episcopal Church Cases (2009) 45 Cal. 4th 467, 477-78 (citations omitted; emphasis in original).) (See also, City of Alhambra v. D’Ausilio, supra, 193 Cal. App. 4th at 1307 [recognizing that the filing of an action after protected activity occurred or that such activity triggered the lawsuit does not require the conclusion that the action arose from that conduct].)
A special motion to strike must also concern “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.” (Civ. Proc. Code § 425.16 (emphasis added).) In determining what constitutes “public interest,” the Courts have recognized the fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements. (Dyer v. Childress (2007) 147 Cal. App. 4th 1273, 1280 (citation omitted).)
Under the second prong, to show a reasonable probability of prevailing, a plaintiff must only present facts which, if proved at trial, would support a judgment in plaintiff’s favor. (Computer Xpress v. Jackson (2001) 93 Cal. App. 4th 993, 1010 [“This standard is ‘similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment,’ in that the court cannot weight the evidence.”].) “‘Reasonable probability in the anti-SLAPP statute has specialized meaning. The statute requires only a ‘minimum level of legal sufficiency and triability.’” (Mindys Cosmetics Inc. v. Dakar (9th Cir. 2010) 611 F. 3d 590, 598 (citation omitted).)
The California Supreme Court has stated that “the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Navellier v. Sletten, 29 Cal. 4th 82, 88–89 (2002) (citations omitted). In ruling on an anti-SLAPP motion to strike, the Court does not weigh the evidence, but instead must accept as true all evidence favorable to the plaintiff. (Dixon v. Superior Court (Scientific Resource Surveys, Inc.) (1994) 30 Cal. App. 4th 733, 746.)
The above sets forth the skeletal framework of a complicated analysis required under the anti-SLAPP statute before the lawsuit can proceed past the initial pleading. The resolution of these motions is fact intensive and requires the presentation of evidence at the inception of a lawsuit that will literally determine whether the action may proceed or not. Analyzing the potential that an anti-SLAPP motion will be part of a case and the impact on a litigation budget to address such a motion is an integral part of pre-litigation planning.
The Gimino Law Office, APC has experience handling these motions at the Superior Court and Appellate Court and we invite you to contact us if you believe you have a claim potentially involving Code of Civil Procedure Section 425.16.
