Freedom of speech and the right to petition are fundamental rights protected by the First Amendment of the United States Constitution.  A SLAPP Action is a “Strategic Lawsuit Against Public Participation” and is used to silence and intimidate critics by forcing them to defend a meritless lawsuit, draining their financial resources. 

The Legislature enacted the anti-SLAPP statute in 1992 in response to a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”[1]  The anti-SLAPP statute authorizes a special motion to strike meritless claims early in litigation if claims “arise 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.”[2]

Acts “in furtherance of” these rights include,

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) 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; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.[3]

In ruling on an anti-SLAPP motion, the trial court engages in a two-step process.  First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.[4]  If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.[5]  Only when a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a likelihood of success on that claim is it subject to dismissal.[6]

Anti-SLAPP motions can be significantly costly and time-consuming.  If a defendant prevails on an anti-SLAPP motion, the lawsuit will likely be dismissed, and attorney fees may be awarded.[7]  However, if the court finds that the anti-SLAPP motion is frivolous, then attorney fees and costs may be awarded to a plaintiff.[8]

By: Mustafa Karim, 2021 Summer Law Clerk at Wilke Fleury

[1] Cal. Code Civ Proc., § 425.16, subd. (a).

[2] Cal. Code Civ Proc., § 425.16, subd. (b)(1).

[3] Cal. Code Civ Proc., § 425.16, subd. (e).

[4] Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360 [117 Cal.Rptr.3d 747].

[5] Wong, supra, 189 Cal.App.4th at p. 1360.

[6] Id.

[7] Cal. Code Civ Proc., § 425.16, subd. (c)(2).

[8] Id.