Cal. Litig. 2014, Volume 27, Number 3

To Demur or Not in SLAPP Cases: Don’t Shoot Yourself in the Foot

By James J. Moneer

In 1992, the Legislature enacted Code of Civil Procedure section 425.16 to create a special motion to strike to deter and obtain early dismissal of Strategic Lawsuits Against Public Participation (SLAPP) suits —meritless lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition the government for redress of grievances. This statute, which is construed broadly (Code Civ. Proc., § 425.16, subd. (a)), provides an operational definition of the speech and petition activity to be protected. (Code Civ. Proc., § 425.16, subd. (e).) The statute sets up a two-step procedure for determining, first, whether the challenged cause of action "arises from" protected speech or petition activity (prong one). Only if it does, the court then proceeds to the second step (prong two) and evaluates whether the claim is both legally sufficient and substantiated by competent admissible evidence that, if credited, would entitle plaintiff to judgment as a matter of law. (Code Civ. Proc., § 425.16, subd. (b)(1); Wilcox v. Superior Court (1994) 27 Cal. App.4th 809, 823-834.)

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An anti-SLAPP motion is the equivalent of a combined demurrer and super-summary judgment motion with a nuclear warhead attached. The burden of producing admissible evidence on prong two is more onerous in opposing a SLAPP motion than for summary judgment because the SLAPP motion "operates like a summary judgment in reverse." (Briggs v. Eden Council Hope and Opportunity (1999) 19 Cal.4th 1106, 1120-1122.) The motion must be filed within 60 days after the complaint is served, and a hearing must occur no later than 30 days after service of the motion unless the court’s docket conditions require otherwise. (Code Civ. Proc., § 425.16, subd. (f).) Once the motion is filed, an automatic stay on all discovery in the entire action is triggered until the court rules on the motion. No leave to amend may be permitted in state court once the motion has been filed. (Simmons v. Allstate (2001) 92 Cal.App.4th 1068, 1072-1073.) Moreover, the moving party has an immediate right of appeal from an order denying the motion. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13).) All proceedings embraced within the appeal are automatically stayed pending appeal. (Code Civ. Proc., § 916; Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180.) Of particular importance is the provision for a mandatory award of attorneys’ fees to a defendant whose SLAPP motion is granted in whole or in part. (Code Civ. Proc., § 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122.)

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