In general, an anti-SLAPP statute is a law that is specifically designed to give defendants to Strategic Lawsuits Against Public Participation (i.e., “SLAPP lawsuits”) a mechanism to dismiss meritless claims intended to intimidate or chill freedom of speech activities. To respond to the increasing number of SLAPP lawsuits in the state, California became one of thirty states to adopt an anti-SLAPP statute. 

Specifically, the California Anti-SLAPP law was enacted in 1992 and codified in the California Civil Procedure Code § 425.16. Under this statute, a defendant being sued for an activity protected by the First Amendment (e.g., the right to petition, freedom of speech, etc.) in connection with a public issue can file a special motion to strike the complaint, which is known as an anti-SLAPP motion in California.  

A defendant who is served with the complaint to a SLAPP lawsuit will have 60 days to file an anti-SLAPP motion. The filing of an anti-SLAPP motion will stop the initial SLAPP lawsuit from moving forward until the court issues a ruling on the motion. To further your chances of prevailing on an anti-SLAPP motion in California, you must be able to survive a two-prong assessment:

    • First, as the defendant, you must show that the plaintiff is suing you for one of the four activities protected under the anti-SLAPP statute; and

 

    • Second, the plaintiff must fail to prove that there is a strong probability that they will succeed on their claim in the original SLAPP lawsuit. 

 

If the court grants the defendant’s anti-SLAPP motion, the SLAPP lawsuit will be dismissed and they will be entitled to attorneys’ fees and court costs. If the court denies the defendant’s anti-SLAPP motion, however, then the SLAPP lawsuit will resume. 

Some activities that may be protected under California’s anti-SLAPP statute include writing a letter to a government representative (e.g., senator, mayor, etc.), informing a newspaper about an issue of public interest, and providing testimony about a public figure or issue at a court proceeding. 

What Are SLAPP Lawsuits?

In general, a SLAPP lawsuit is an action filed by a plaintiff that intends to silence, censor, or intimidate a defendant by burying them with legal costs in the hopes that they will either refrain from their activities or be pressured into giving-up their criticism of the plaintiff due to mounting legal costs. 

In most cases, the plaintiff to a SLAPP lawsuit is aware that they will not win the case and are simply filing the action to harass or deter the defendant from continuing with their activities. 

There are many different types of legal actions that can form the basis of a SLAPP lawsuit, such as a claim for defamation, invasion of privacy, nuisance, malicious prosecution, conspiracy, interference with contract, abuse of process, intentional infliction of emotional distress, and economic advantage. 

For example, a plaintiff who is a public figure may file a SLAPP lawsuit for defamation that alleges the defendant is making untruthful statements about them. The filing of the lawsuit will either intimidate the defendant into dropping their criticism of the plaintiff or the defendant will have the opportunity to file an anti-SLAPP motion against them. 

A similar scenario will occur when a plaintiff files a SLAPP lawsuit based on malicious prosecution. For instance, suppose an individual was being abused by a politician and reported the abuse to the police. The police find enough evidence to support the claim and submit their findings to the local prosecutor who then files charges against the politician. 

To preserve their reputation, the politician files a SLAPP lawsuit against the individual to scare them into dropping the charges. The individual (who is now the defendant in the SLAPP lawsuit) will either back down or can file an anti-SLAPP motion against the politician. The politician could also take it one step further by burdening the individual with additional legal expenses during the anti-SLAPP proceeding. 

What’s Unique About California?

The state of California accounts for a significant portion of SLAPP litigation in the United States. This includes both SLAPP lawsuits as well as related anti-SLAPP proceedings. There are two reasons as to why California has so many more cases involving SLAPP litigation than other states. The first is because SLAPP lawsuits are used as a mechanism by celebrities to silence information that would ruin their reputation. 

The second reason stems from the fact that California has stronger anti-SLAPP regulations and protections than other states. This is also what makes California’s anti-SLAPP statute so unique. For example, unlike other states, California limits anti-SLAPP motions for cases involving class action lawsuits, commercial actions, and public interest issues. 

In addition, California also expands the rights of victims of SLAPP litigation by allowing them to recover damages through counterclaims known as, “SLAPPback” lawsuits. A victim who files a SLAPPback lawsuit may be able to collect both compensatory and punitive damages if they can successfully show that the party who filed the original SLAPP lawsuit abused the legal process.

California Anti-SLAPP for Employers

In regard to employment litigation, California anti-SLAPP law has increasingly been put to use by employers involved in employment retaliation and discrimination matters. 

Specifically, public employers have more recently started using anti-SLAPP motions to challenge plaintiff-employees who initially sued their employers for discrimination and retaliation in connection with a workplace investigation. 

As an example of how anti-SLAPP motions may be used in employment cases, consider the following scenario:

    • An employer has a government agency investigate a certain employee. The investigation results in that employee being terminated based on the investigator’s findings.

 

    • The terminated employee then files a lawsuit against their employer, alleging that the investigation was conducted in retaliation to an incident that the employee complained about or was based on discriminatory motivations.

 

    • To prevent the employee’s employment retaliation or discrimination lawsuit from moving forward, the employer files an anti-SLAPP motion, claiming that they are “protected” from complaining about the employee and had a “right” to request the investigation. 

 

    • If the employee does not have enough evidence to combat the anti-SLAPP motion, the court will grant the motion in the employer’s favor and the original discrimination or retaliation lawsuit will be dismissed.

 

Similarly, the anti-SLAPP statute has also been used in California cases concerning hostile work environments. In one particular lawsuit, a worker claimed a colleague was promoting a hostile work environment by posting on-set photos that had insulting captions about them on social media. The colleague then filed an anti-SLAPP motion against the hostile work environment lawsuit. 

Under the anti-SLAPP law, the court found that the posting of the photo was of public interest and denying the post would infringe on the colleague’s First Amendment rights. Accordingly, the original hostile work environment lawsuit was dismissed. 

Do I Need to Seek an Anti-SLAPP Attorney?

If a SLAPP lawsuit has been filed against you and you believe that your actions were protected by either the First Amendment to the U.S. Constitution or its equivalent under California’s state constitution, then you should strongly consider contacting a local California government attorney for further advice as soon as possible.

An experienced California government attorney can inform you about your rights under California’s anti-SLAPP law and can discuss your options for legal recourse. Your attorney will be able to determine whether you should file an anti-SLAPP motion against the SLAPP lawsuit and can help you with the process. 

Additionally, your attorney can also assist you in proving that your motion satisfies the elements required under the anti-SLAPP statute and can provide representation on your behalf during your anti-SLAPP hearing.