In 2016, the California Supreme Court and the Ninth Circuit Court of Appeals issued important opinions interpreting California’s anti-SLAPP statute (C.C.P. § 425.16 et seq.), once again broadly construing its application. SeeBaral v. Schnitt, pg. 4 and Sarver v. Chartier, pg. 5. Enacted in 1992, California’s statute remains the strongest—and most frequently litigated—anti-SLAPP statute in the nation for the protection of the exercise of free speech and petitioning activities. In 2016, California’s state and federal appellate courts produced more than two dozen published anti-SLAPP opinions and more than 150 unpublished opinions. As we do every year, we briefly summarize the most significant anti-SLAPP appellate cases decided in 2016.
PRONG ONE: Does the Anti-SLAPP Statute Apply?
California’s anti-SLAPP statute follows a two-step process. In the first step—or “prong one”—the court determines whether the defendant has made a prima facie showing that the challenged cause of action (or plaintiff’s entire complaint) arises from the defendant’s constitutionally protected petitioning or free-speech activity. The statute features four broad categories of activity that constitute “act[s] 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” and within the protection of the statute. See C.C.P. § 425.16, subd. (e) (1) to (4). The statute is to be “construed broadly.” C.C.P. § 425.16 (a).
In 2016, California’s appellate courts held that the anti-SLAPP statute protected a variety of petitioning and free-speech activities:
•Votes by city council members taken after a public hearing qualify as acts in furtherance of constitutionally protected activity. City of Montebello v. Vasquez, 1 Cal. 5th 409, 425-427 (2016) (citing favorably, Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd., 225 Cal. App. 4th 1345, 1353-1355 (2014));•A declaratory relief action brought by three directors of a homeowners association against six other directors and the manager of the association was within the anti-SLAPP statute because the defendant directors’ decision-making process and debate in approving a roofing project for the association “impacted a broad segment, if not all of [the homeowners association’s] members. Lee v. Silveria, 6 Cal. App. 5th 527 (reversing the trial court and granting defendants’ anti-SLAPP motion).•An alleged libel based on a report authored by a business consultant that questioned the accuracy of certain public statements made by the plaintiff, a waste-materials hauler, involved speech in connection with a public issue and subject to the anti-SLAPP statute. Industrial Waste and Debris Box Service, Inc. v. Murphy, 4 Cal. App. 5th 1135 (2016);•Anti-SLAPP protection applied to lawsuit filed against producers and distributors of the film The Hurt Locker, challenging the allegedly unauthorized and false depiction of the plaintiff’s work with improvised explosive devices during the Iraq War. Rejecting plaintiff’s primary reliance on Dyer v. Childress, 147 Cal. App. 4th 1273 (2007), the Ninth Circuit Court of Appeals found that the film’s “focus on the conduct of the Iraq War satisfies California’s standards for determining whether an issue is one of public concern.” Sarver v. Chartier, 813 F.3d 891, 901-902 (9th Cir. 2016). [See related story internally re Sarver v. Chartier.]; and•Similarly, the Second Appellate District in Los Angeles ruled that the anti-SLAPP statute applied to a defamation lawsuit filed against the producers and distributors of the movie American Hustle, based on a brief dialogue reference in the movie to plaintiff, because “the microwave oven scene plainly drew on an issue of public interest in the 1970’s, and plaintiff was an integral part of that issue at the time. Whether we consider the public interest in the movie as a whole—which is conceded and undeniable—or the public interest in the particular topic being discussed in the scene at issue—which likewise existed during the era being depicted—our conclusion remains the same. Defendants’ conduct in writing and broadcasting the microwave oven scene was protected activity within the meaning of the anti-SLAPP statute.” Brodeur v. Atlas Entertainment, Inc., 248 Cal. App. 4th 665, 677-678 (2016).
Other actions did not trigger anti-SLAPP protection:
•A civil and probate action brought by the beneficiary of a trust against a trustee for breach of fiduciary duty, constructive fraud and conversion was not subject to the anti-SLAPP statute because plaintiff’s claims against the trustee for withdrawing trust funds did not arise from any “oral statement or writing” protected by the statute. Greco v. Greco, 2 Cal. App. 5th 810 (2016);•The public interest in preventing sexual harassment in the workplace did not trigger anti-SLAPP protection where “a single letter written to ban a single firefighter from Cal Fire’s facilities on account of past allegations of harassing a single employee” does not “rise to a public interest under subdivision (e) (4). If it did, discussion of any work place dispute … would qualify as a matter of public interest for purposes of the anti-SLAPP statute, something the Legislature did not design the statute to do.” Baughn v. Dept. of Forestry & Fire Protection, 246 Cal. App. 4th 328, 339 (2016);•In another employment-related lawsuit, retaliation and discrimination claims made by a former state university medical resident were not protected by the anti-SLAPP statute. Nam v. Regents of the University of California, 1 Cal. App. 5th 1176 (2016);•A lawsuit against CNN alleging discrimination, retaliation, wrongful termination, and defamation brought by a former producer and web article writer who did not appear on camera did not involve an issue of public interest and fell outside the scope of the anti-SLAPP statute. Wilson v. Cable News Network,6 Cal. App. 5th 822 (2016); and,•A confrontation between neighbors that was captured on a cellphone video-recording did not trigger anti-SLAPP protection because defendants “did not present any evidence to establish that [plaintiffs] were anyone other than ‘private, anonymous’ parties or that the dispute was anything other than a private controversy.” Abuemeira v. Stephens, 246 Cal. App. 4th 1291, 1298 (2016). As the court observed: “A video-recording of an unseemly private brawl, no matter how wide its distribution, is far removed from a citizen’s constitutional right of petition or free speech involving a public issue.” Id. at 1294.
After years of conflicting appellate court rulings, in Baral v. Schnitt, 1 Cal. 5th 376 (2016), the California Supreme Court resolved how the anti-SLAPP statute applies in “mixed conduct” situations—where a portion of a cause of action involved both conduct that was protected by the anti-SLAPP statute and conduct that was unprotected. The Supreme Court in Baral unanimously determined that an anti-SLAPP motion is available against portions of causes of action that infringe on the defendant’s constitutionally protected petitioning or free-speech activities. See article Baral v. Schnitt, 4.
PRONG Two: Did the Plaintiffs Show a “Probability of Prevailing” on Their Claims?
If the defendant makes a prima facie showing that the plaintiff’s cause of action (or complaint) arises from constitutionally protected petitioning or free-speech activities, then in “prong two,” the burden shifts to the plaintiff to establish with admissible evidence a “probability” of prevailing on the claims challenged by the anti-SLAPP motion.
In 2016, a variety of claims and lawsuits were dismissed in prong two of the anti-SLAPP statute. For example:
•Reed v. Gallagher, 248 Cal. App. 4th 841 (2016) (affirming grant of anti-SLAPP motion dismissing libel action brought by a failed candidate for the State Assembly against a competing—and ultimately elected—candidate’s election advertisement because statement that plaintiff was an “unscrupulous” attorney was a non-defamatory opinion; statement that plaintiff was a “crook” was non-defamatory opinion; and the statement that plaintiff had been ordered to pay back attorney fees he improperly collected from an elderly client was not so far removed from the truth as to permit an inference of actual malice);•Karnazes v. Ares, 244 Cal. App. 4th 344 (2016) (anti-SLAPP motion granted dismissing fraud, concealment and promissory estoppel claims brought by an investor against a stockbroker and her attorney because the plaintiff failed to provide any evidence in support of her claims; “pleadings do not constitute evidence”);•County of Riverside v. Public Employment Relations Board, 246 Cal. App. 4th 20 (2016) (anti-SLAPP motion granted dismissing breach of contract and declaratory and injunctive relief action brought by a county because defendant’s acceptance of a public employee union’s request to use advisory fact-finding as a method of resolving a labor impasse, as provided by the Meyers-Milias-Brown Act (Cal. Gov. Code § 3500), did not violate California’s Constitution, article XI, section 11, subdivision (a) because the act’s provisions do not delegate any power to make any binding decisions affecting public agency operations in interference with the county’s home rule powers);•Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) (anti-SLAPP motion granted dismissing right of publicity, defamation, false light privacy, intentional infliction of emotional distress, fraud and breach of contract claims brought by army sergeant who alleged that a character in the movie The Hurt Locker was a false and unauthorized depiction of him and his work to dispose of improvised explosive devices during the Iraq War, because, viewed as a whole, the film did not defame Sarver and his depiction in the film would not “highly offend” a reasonable person and was not the result of “extreme” or “outrageous” conduct that induced severe or emotional distress);•Doe 2 v. Superior Court of Los Angeles County, 1 Cal. App. 5th 1300 (2016) (writ granted as a matter of law based on undisputed facts reversing trial court’s order that authorized special discovery in a libel action brought by plaintiff to learn the identity of the author of an anonymous email);•J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87 (2016) (reversing trial court and dismissing trade libel action brought against a law firm for a press release because it was protected by the “fair report” privilege and was nonactionable opinion); and,•Industrial Waste and Debris Box Service, Inc. v. Murphy, 4 Cal. App. 5th 1135 (2016) (reversing trial court and granting anti-SLAPP motion to dismiss libel action based on statements challenged in report about hauler of waste; plaintiff failed to provide evidence in support of its libel claim).
Contrastingly, in another instance, plaintiff defeated an anti-SLAPP motion in prong two:
•Manzari v. Associated Newspapers Ltd., 830 F.3d 881 (9th Cir. 2016) (anti-SLAPP motion denied in libel action brought by a former pornographic model, who, although deemed a “public figure,” plaintiff showed a reasonable probability of demonstrating “actual malice” and prevailing on her defamation and false-light privacy claims against a news provider after her image appeared in connection with an article about an unidentified pornographic performer’s HIV-positive test results).
EXEMPTIONS TO THE ANTI-SLAPP STATUTE – When a Lawsuit Is Not Subject to the Statute
There are four situations that are exempted from California’s anti-SLAPP statute: (1) public-enforcement actions; (2) actions filed solely in the public interest; (3) actions involving certain commercial speech; and (4) criminally illegal conduct by the defendant.
The California Supreme Court in City of Montebello v. Vasquez, 1 Cal. 5th 409, 419-420 (2016), reiterated that exemptions to the anti-SLAPP statute are to be narrowly construed to ensure that the anti-SLAPP statute itself remains broadly construed. As the Supreme Court put it: “[E]xpansive interpretation of exemptions from the anti-SLAPP statute is inconsistent with the Legislature’s express intent that the statute’s core provisions ‘shall be construed broadly.’” Id.
In City of Montebello, the Supreme Court reviewed the scope of the “public enforcement” exemption by noting that “the terms of Section 425.16 (d) unambiguously limit the scope of the exemption to enforcement actions brought both ‘in the name of the people of the State of California’ and ‘by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.’ . . . The Legislature’s choice of this specific language reflects its understanding that actions brought in the name of local entities, or by attorneys other than the public officers identified in the statute, are not included in the exemption.” 1 Cal. 5th at 419.
Actions Brought “Solely” in the Public Interest
In Cruz v. City of Culver City, 2 Cal. App. 5th 239 (2016), an anti-SLAPP motion was found not to be exempt from the anti-SLAPP statute under the “public interest” exemption because the plaintiffs’ Brown Act (California’s Open Meetings Law) complaint sought personal relief.
“Commercial Speech” Exemption
In Karnazes v. Ares, 244 Cal. App. 4th 344 (2016), the statute’s so-called “commercial speech” exemption to the anti-SLAPP statute (C.C.P. 425.17 (c)) was not triggered because the challenged statements were made in the context of a lawyer’s representation of their client in pre-litigation negotiations, which did not fit within the narrow exemption.
However, in JAMS, Inc. v. San Diego County Superior Court, 1 Cal. App. 5th 984 (2016), the Court of Appeal expansively interpreted the “commercial speech” exemption to encompass alleged statements of omission or half-truths, a ruling that, absent action by the California Supreme Court, will remain available as intermediate authority for plaintiffs to avoid application of the anti-SLAPP statute because immediate appellate review is unavailable under Section 425.17 (e) once an exemption under Section 425.17 is triggered.
“Criminal Illegality” Exemption
The Supreme Court in City of Montebello, in which the city alleged that the defendant council members alleged illegal conflicts of interest precluded their reliance on the anti-SLAPP statute, revisited the court’s earlier decision in Flatley v. Mauro, 39 Cal. 4th 299, 316-318 (2006) to re-emphasize that it had “made it clear in Flatley that conduct must be illegal as a matter of law to defeat a defendant’s showing of protected activity. The defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step.” 1 Cal. 5th at 424; see e.g., Reed v. Gallagher, 248 Cal. App. 4th 841, 853 (2016) (failed candidate for the California Assembly who sued a competing candidate for libel failed to satisfy the Flatley criminal-illegality exemption when he claimed that the defendant violated Penal Code Section 115.2 by allegedly displaying a court order with an intent to deceive viewers into believing that there was a legal record that plaintiff was unscrupulous because there was no evidence of malice or intent to deceive).
WHEN AN ANTI-SLAPP MOTION CAN BE BROUGHT
Generally speaking, an anti-SLAPP motion is to be filed within 60 days after service of plaintiff’s complaint. See C.C.P. § 425.16 (g). In Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 6 Cal. App. 5th 1207, the court of appeal approved the filing of an anti-SLAPP motion against two causes of action newly alleged in a third amended complaint, but disallowed as untimely the anti-SLAPP motion as to two other causes of action that had appeared in earlier versions of the complaint but which were not previously challenged with an anti-SLAPP motion. The appellate court held: “Under section 425.16(f), an anti-SLAPP motion is untimely if not filed within 60 days of service of the first complaint that pleads a cause of action coming within anti-SLAPP protection unless the trial court, in its discretion and upon terms it deems proper, permits the motion to be filed at a later time.” Id. at 1211-1212.
USING ANTI-SLAPP MOTIONS IN FEDERAL COURT
Finally, while there is currently a circuit split concerning the viability of anti-SLAPP motions in federal court [compare Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015) (D.C.’s anti-SLAPP statute not available in federal court) with Makaeff v. Trump University, LLC, 736 F.3d 1180 (9th Cir. 2013) (refusing to reconsider, en banc, the circuit’s anti-SLAPP precedents since 2003 despite a plea by Judge Alex Kozinski)], anti-SLAPP motions remain viable in the Ninth Circuit when the federal court is sitting in diversity or hearing pendent state law claims. See, e.g., Sarver, 813 F.3d at 897, fn. 1; Manzari, 830 F.3d at 886.
In Sarver, the Ninth Circuit also made clear that the “timing controls” [the 30-day and 60-day rules that California’s anti-SLAPP statute provide for the filing and the scheduling of the hearing for an anti-SLAPP motion] imposed by Section 425.16 subdivision (f) of the anti-SLAPP statute “directly collide[s] with the more permissive timeline Rule 56 provides for the filing of a motion for summary judgment.” 813 F.3d at 900-901.
But in Traveler’s Casualty Insurance Co. of America v. Hirsh, 831 F.3d 1179, 1186 (9th Cir. 2016), Judge Alex Kozinski passionately reasserted his objections in Makaeff to hearing anti-SLAPP motions in federal court: “We were wrong in Newsham and Batzel, and wrong not to take Makaeff en banc to reverse them. But it’s not too late to correct these mistakes. Cases like this one have no place on our docket, and we should follow the D.C. Circuit in extirpating them. Our ink and sweat are better spent elsewhere.”
Notwithstanding Judge Kozinski’s continuing objection, for now, in the Ninth Circuit, the denial of an anti-SLAPP motion remains appealable under the collateral order doctrine. “[I]t does not follow, however, that the grant of a motion to strike is as well. The denial of an anti-SLAPP motion to strike is not fully reviewable on appeal after final judgment because the statute provides an important right, ‘immunity from suit’ that would be ‘effectively lost if a case is erroneously permitted to go to trial.’ [citation omitted] No such loss of rights occurs when the review of a grant of an anti-SLAPP motion to strike is delayed until the appeal of final judgment.” Hyan v. Hummer, 825 F.3d 1043, 1047 (9th Cir. 2016).
Thomas R. Burke is a partner in Davis Wright Tremaine LLP’s San Francisco office and is the author of Anti-SLAPP Litigation (The Rutter Group, 2013-2017).