Code of Civil Procedure – Section 425.16.
(a) The Legislature finds and declares that there has been 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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(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. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.
(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.
(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (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, or (4) 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.
(f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.
(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.
(h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”
(i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.
(j) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.
The California anti-SLAPP law was enacted by the state Legislature almost twenty years ago to protect the petition and free speech rights of all Californians. Amendments have been made since that time to improve the law and provide stronger protection from meritless lawsuits to anyone who is SLAPPed in California.
ReplyDeleteCode of Civil Procedure section 425.16
California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. The statute was first enacted in 1992.
Code of Civil Procedure section 425.17
This statute was enacted to correct abuse of the anti-SLAPP statute (CCP § 425.16). It prohibits anti-SLAPP motions in response to (1) public interest litigation when certain conditions are met, and (2) certain actions against a business that arise from commercial statements or conduct of the business.
Code of Civil Procedure section 425.18
This statute was enacted primarily to facilitate the recovery by SLAPP victims of their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed. It provides that the prevailing defendant attorney fee and immediate appeal provisions of the anti-SLAPP law do not apply to SLAPPbacks, and that an anti-SLAPP motion may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.
Code of Civil Procedure sections 1987.1 and 1987.2
These statutes set forth a procedure for challenging subpoenas. The 2008 amendment to section 1987.1 allows any person to challenge subpoenas for “personally identifying information” sought in connection with an underlying lawsuit involving that person’s exercise of free speech rights. This amendment also added section 1987.2(b), which provides that such a person who successfully challenges such a subpoena arising from a lawsuit filed in another state based on exercise of free speech rights on the Internet is entitled to recover his or her attorney fees.
Civil Code section 47
Defines privileged publication or broadcast and immunizes participants in official proceedings or litigation against all tort actions except malicious prosecution. This statute figures prominently in many cases.
I found this information on this website: http://www.casp.net/california-anti-slapp-first-amendment-law-resources/statutes/
I think it is good that more amendments have been passed to improve this law especially because there seems to be more and more of these types of lawsuits in California. It is interesting to me why there is no federal law against SLAPPs and only about 26 states have enacted protections against it. I am unsure why there are so many of these cases in California in comparison to the rest of the United States. I like the section on SLAPPbacks as a method of defense of the defendant and as a comeback to the plaintiff who had filed the original case.