By Thomas R. Burke
In 2017, California’s state and federal appellate courts issued 34 published opinions interpreting the state’s anti-SLAPP statute (C.C.P. § 425.16 et. seq.) and more than 169 unpublished appellate opinions. The California Supreme Court twice reaffirmed the statute’s broad construction. Barry v. State Bar of California, 2 Cal. 5th 318, 320, (2017); Park v. Board of Trustees of California State University, 2 Cal. 5th 1057, 1070, fn. 4 (2017). According to the California Judicial Council, more than 425 anti-SLAPP motions were filed in California’s trial courts in 2017. The California Supreme Court also agreed to hear several important anti-SLAPP questions. (See sidebar on page 9.) As we do annually, we briefly summarize the past year’s most significant anti-SLAPP developments. Enacted in 1992 to protect the exercise of free speech and petitioning activities, California’s anti-SLAPP statute remains the strongest—and most frequently litigated—statute of its kind in the nation.
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 plaintiff’s cause of action (or a portion thereof or the 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 Cal. Civ. Proc. Code § 425.16, subd. (e)(1) – (4). Expressly, the statute is to be “construed broadly.” Cal. Civ. Proc. Code § 425.16(a).
One notable development in 2017 was the sheer variety of nontraditional uses of the anti-SLAPP statute by defendants, illustrating the broad protection for free speech and petitioning activities that the legislature envisioned. For example:
- The recording of a lien was protected by the anti-SLAPP statute. O’Neil-Rosales v. Citibank (South Dakota) N.A., 11 Cal. App. 5th Supp. 1, 6 (App. Div. 2017).
- In a probate matter, whether a “no contest” clause in a trust was violated by a beneficiary of the trust was protected by the “plain language of the anti-SLAPP statute.” Urick v. Urlick, 15 Cal. App. 5th 1182, 1194-1195 (2017).
- An insurer’s submission of a notice to the California Department of Motor Vehicles that the insured’s car was a “total loss salvage vehicle” was protected by the anti-SLAPP statute when the insured sued for slander of title. Klem v. Access Insurance Co., 17 Cal. App. 5th 595, 609 (2017).
- Claims for wrongful foreclosure, breach of contract, and others brought by a property owner against the mortgage financier Fannie Mae arose from its “constitutionally protected actions that were taken as a part of, or related to,” the property owner’s bankruptcy action and within the anti-SLAPP statute. Crossroads Investors v. Federal National Mortgage, 13 Cal. App. 5th 757, 766, 777-785 (2017).
- A civil rights action brought by a former sex-offender registrant based on the state’s alleged failure to timely remove him from its registry was protected by the anti-SLAPP statute. Doe v. State, 8 Cal. App. 5th 832, 839-840 (2017) (emphasizing that the state “was entitled to file an anti-SLAPP motion”) Id. at 839.
Other appellate rulings reflected more traditional uses of the anti-SLAPP statute:
- A musician’s claims for breach of contract, negligent misrepresentation, and right of publicity, among others, against Facebook for its alleged failure to remove content that was critical and threatening involved a “public forum” and concerned a “matter of public interest” and subject to the anti-SLAPP statute. Cross v. Facebook, Inc., 14 Cal. App. 5th 190, 199-205 (2017).
- A nonprofit organization’s lawsuit against a state university, public broadcast station, and journalism organization that alleged statutory violations against self-dealing was protected by the anti-SLAPP statute and within the press exemption found in Civ. Proc. Code § 425.17 (d)(1). San Diegans for Open Government v. San Diego State University Research Foundation, 11 Cal. App. 5th 477, 484 review granted, 399 P.3d 644 (2017) (“News stories addressing issues of public interest do not arise out of thin air. They often require newsgathering using offices, internet access, studios, and production services. Providing office space and related newsgathering facilities in exchange for investigative news stories furthers protected speech . . . and [is] squarely within the anti-SLAPP statute, which protects not only speech, but also ‘conduct in furtherance of the exercise of the constitutional right of . . . free speech.’” [emphasis in original]).
- Invasion of privacy and negligence claims based on the alleged surreptitious recording of the president of a wildlife-conservation organization “implicate public issues because it involved two presidents of an organization with 50,000 members and was published on the internet to promote reform of the organization” for public consumption, “concern[ed] the governance of an organization that impacts a broad segment of society” and was subject to the anti-SLAPP statute. Safari Club International v Rudolph, 845 F.3d 1250, 1259-1260 (9th Cir. 2017).
- A tree trimming dispute between homeowners belonging to a homeowners association met the definition of “public interest” in the statute. Colyear v. Rolling Hills Community Assoc. of Rancho Palos Verdes, 9 Cal. App. 5th 119,130-136 (2017) (collecting previous homeowners association anti-SLAPP cases).
- A putative class action lawsuit for right of publicity brought by former collegiate student-athletes against a website that hosted “photographs memorializ[ing] cherished moments in NCAA sports history” was protected by the anti-SLAPP statute. Maloney v. T3Media, Inc., 853 F.3d 1004, 1010, fn. 3 (9th Cir. 2017).
- A lawsuit for invasion of privacy, defamation, and intentional and negligent infliction of emotional distress brought by a model against her ex-boyfriend, a well-known professional boxer, based on his social media postings and radio-interview comments “arose from protected activity under section 425.16.” Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1252-1254 (2017).
- “Litigation funding decisions also constitute protected-petitioning activity.” Sheley v. Harrop, 9 Cal. App. 5th 1147, 1166 (2017).
A variety of other actions did not trigger protection under the anti-SLAPP statute:
- A trespass action brought by the owner of grocery stores against petition signature-gathering companies who solicited signatures on the sidewalk area in front of the privately owned stores was not protected by the anti-SLAPP statute because the design of the stores did not have “a public character that would support a finding that [the defendants] were engaging in protected activity for the purposes of their anti-SLAPP motion.” Ralphs Grocery Company v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 261 (2017).
- An implied-in-fact contract claim brought against a studio, production companies, and screenwriter involved in the creation and distribution of the film “The Purge” did not arise from the defendants’ free-speech activity but rather from the defendants’ alleged “failure to pay” the plaintiff. Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184, 1190-1193 (9th Cir. 2017).
- A dispute between a beer distributor and a brewer after the brewer’s distribution contract was terminated was not subject to the anti-SLAPP statute but instead arose from the brewer’s decision to terminate the agreement. Mission Beverage Co. v. Pabst Brewing Company, LLC, 15 Cal. App. 5th 686, 700-704 (2017).
In Park, the California Supreme Court did not decide whether the anti-SLAPP statute is available against FEHA claims where the alleged injury-producing conduct involved protected petitioning or free-speech activities. However, the court may decide this issue when it hears Wilson v. Cable News Network, Inc., S239686. See discussion infra.
Following the Supreme Court’s Park decision, appellate courts denied anti-SLAPP protection to a variety of different actions:
In Park v. California State University, 2 Cal. 5th 1057 (2017), the California Supreme Court determined that a discrimination claim under the Fair Employment and Housing Act (FEHA) brought by a former tenure-track assistant professor was not subject to an anti-SLAPP motion because although the decision to deny him tenure and to terminate his employment “contest[ed] an action or decision that was arrived at following speech or petitioning activity,” the anti-SLAPP statute was only available if the “speech or petitioning activity itself is the wrong complained of.” Id. at 1062-1062. Even though Professor Park’s “tenure decision may have been communicated orally or in writing,” this communication “did not convert Park’s suit to one arising from such speech” and trigger the anti-SLAPP statute. Id., 1067-1068. As the Supreme Court observed: “Conflating, in the anti-SLAPP analysis, discriminatory decisions and speech involved in reaching those decisions or evidencing discriminatory animus could render the anti-SLAPP statute ‘fatal for most harassment, discrimination and retaliation actions against public employers.’” Id. at 1067, quoting Nam v. Regents of the University of California, 1 Cal. App. 5th 1176, 1189, (2016).
- A surgeon’s lawsuit against a hospital alleging the hospital retaliated against him for his whistleblower claims by summarily terminating his hospital privileges and initiating peer-review proceedings didn’t arise from the hospital’s constitutionally protected activities. Bonni v. St. Joseph Health System, 13 Cal. App. 5th 851 (2017), review granted, 404 P. 3d 636 (2017) (“Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.”) Id. at 864.
- A lawsuit against a city alleging claims for negligence, inverse condemnation, and selective enforcement arising out of the denial of a homeowner’s permit to build a deck (and to approve a neighbor’s permit to build a wall) arose from the city’s decision to grant and deny building permits and not from protected activity. Shahbazian v. City of Rancho Palos Verdes, 17 Cal. App. 5th 823, 831 (2017).
- In connection with a whistleblower action brought by a social worker against the county, the act of putting the plaintiff on administrative leave with the intention of firing her did not arise from the exercise of the county’s protected activity. Whitehall v. County of San Bernardino, 17 Cal. App. 5th 352, 362 (2017).
In Baral v. Schnitt, 1 Cal. 5th 376 (2016), the California Supreme Court 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. Although Baral primarily focused on how the anti-SLAPP statute applied to “mixed” claims (involving conduct by the defendant that was both protected and unprotected by the statute), the court’s unanimous opinion broadly addressed how the anti-SLAPP statute applies when multiple claims are alleged within a single cause of action.
In 2017, trial and appellate courts across California began to interpret and apply Baral. Since Baral was decided, more than 127 appellate and U.S. District Court opinions have cited to the Supreme Court’s opinion and considered what changes Baral brought to the application of the anti-SLAPP to a plaintiff’s claims. But other appellate courts after Baral have continued to use the “gravamen” test when applying the anti-SLAPP statute.
For example, in Sheley, 9 Cal. App. 5th at 1168-1171, the appellate court observed that “after Baral, when deciding whether claims based on protected activity arise out of protected activity we do not look for an overall or gestalt ‘principal thrust’ or ‘gravamen’ of the complaint or even a cause of action as pleaded. Indeed, the Baral court did not use the terms ‘principal thrust’ or ‘gravamen’ as a way to describe whether claims are subject to being struck under the anti-SLAPP statute. Employing terms frequently used by Courts of Appeal in anti-SLAPP cases, our high court in Baral indicated that the proper approach is to determine whether an allegation or claim of protected activity is ‘merely incidental’ or ‘collateral’ to a cause of action. [Citation omitted] Claims that are merely incidental or collateral are not subject to section 425.16.”). See also Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1250 (2017) (applying Baral; “If the defendant makes the required [prong one] showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”).
But other appellate courts after Baral have continued to use the “gravamen” test when applying the anti-SLAPP statute. For example, in Okorie v. Los Angeles Unified School District, 14 Cal. App. 5th 574 (2017), a teacher sued her school district for race and national origin discrimination claims and other causes of action. After a discussion of Baral and Sheley v. Harrop, the Court of Appeal affirmed the trial court’s dismissal finding that the “gravamen of plaintiff’s claims” was based on the school district’s protected activity. Id. at 586-593. However, in a concurring and dissenting opinion, relying on Sheley v. Harrop, Presiding Appellate Justice Rothschild of the Second Appellate District, Division One, argued against the continued use of the “principal thrust/gravamen analysis” to apply the anti-SLAPP statute after Baral. Id. at 601-602. She also argued that, because the plaintiff also alleged unprotected activity to support at least some of his claims, the trial court erred in striking the entire complaint. Id.
How California’s trial and appellate courts apply the Supreme Court’s decision in Baral will remain an important anti-SLAPP issue to watch in 2018.
PRONG TWO: Did the Plaintiff Show a “Probability of Prevailing” on Their Claim?
Under California’s anti-SLAPP statute, if the defendant makes a prima facie showing that the plaintiff’s cause of action (or a portion thereof or the entire complaint) arises from the defendant’s constitutionally protected petitioning or free-speech activities 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. Cal. Civ. Proc. Code § 425.16, subd. (b).
In 2017, a wide variety of individual claims and entire lawsuits were dismissed in prong two of the anti-SLAPP statute. For example:
In Barry, 2 Cal. 5th at 325-326, the California Supreme Court affirmed the dismissal of a discrimination claim (based on the bar’s handling of earlier disciplinary charges) brought by a lawyer who filed the action in superior court rather than the Supreme Court, which has exclusive jurisdiction over attorney discipline matters. Dismissing the action on jurisdiction grounds, the Supreme Court made clear that a court may dismiss a plaintiff’s claims using the anti-SLAPP statute by ruling on the merits—or by determining on a nonmerits basis “that the plaintiff has no probability of prevailing because the court lacks the power to entertain the claims in the first place.” Id.
In Klem, 17 Cal. App. 5th at 618, a car owner’s complaint for slander of title and unfair competition against his insurer was dismissed in prong two because the insurer did not act with malice and enjoyed a qualified privilege.
In Optional Capital v. Akin Gump, Strauss, Hauer & Feld LLP, 18 Cal. App. 5th 95, 118 (2017), claims for conversion and fraudulent transfer brought by a former client of a law firm were dismissed in prong two on the basis of the litigation privilege. Noting that “[a]n anti-SLAPP motion is an evidentiary motion,” the Court of Appeal noted that plaintiff “relied on unverified allegations, averments made on information and belief, and most critically, on evidence concerning only Defendants’ litigation-related communicative conduct—evidence that was, at best, equivocal—in proving up Plaintiff’s claims.” Id. at 119.
In Sheley, 9 Cal. App. 5th at 1171-1175, portions of claims for breach of fiduciary duty, conversion, and negligence in a lawsuit brought by majority owners of a closely held company against a minority owner were dismissed because the minority owner failed to establish that their claims were legally sufficient and factually substantiated.
In Doe, 8 Cal. App. 5th at 841-845, an anti-SLAPP motion was granted dismissing claims for negligence, false arrest, defamation, and civil rights violations brought by a former sex-offender registrant against the state (for allegedly including his name in the sex-offender registry) because the state’s actions were protected by immunity and the failure to determine whether to continue to register as a sex offender rested with plaintiff, not the state.
In Industrial Waste and Debris Box Service, Inc. v. Murphy, 4 Cal. App. 5th 1135, 1164 (2017), a libel claim brought by a hauler of waste against a waste-management consultant for statements made in a report that questioned the accuracy of information in plaintiff’s publicly filed reports was dismissed when plaintiff failed to make out a prima-facie case of falsity regarding the challenged statements.
In Argentieri v. Zuckerberg, 8 Cal. App. 5th 768, 776 (2017), a defamation claim brought by an attorney (who represented the purported buyer of an interest in Facebook) against the corporation and its founder based on a statement emailed by the corporation’s general counsel to the press because the statement was privileged by Civil Code Sec. 47(d) as a “fair and true” report about the filing of defendants’ malicious prosecution action.
In Charney, 10 Cal. App. 5th at 158, claims brought by a corporation’s former chief executive officer for defamation, false light, intentional interference with actual and prospective economic relations, and unfair competition were dismissed because statements made by the corporation about the CEO in a press release did not “satisfy his burden of showing minimal merit” that the statements about him were defamatory.
In Schwern v. Plunkett, 845 F.3d 1241, 1245 (9th Cir. 2017), plaintiff’s claims for defamation, emotional distress, and intentional interference with economic relations were dismissed because plaintiff failed to offer sufficient evidence that “a reasonable trier of fact” could find that the defendant was the source of the online commentary that was the basis of the claims.
In O’Neil-Rosales, 11 Cal. App. 5th Supp. at 6, claims for alleged violations of federal and state debt-collection statutes were dismissed because the filing of an abstract of judgment as a lien against real property was protected by the litigation privilege (Civ. Code § 47(b)) and because the recording of the abstract did not create a real property lien against plaintiff’s property.
In San Diegans for Open Government, 11 Cal. App. 5th at 505-508, breach-of-contract claims and alleged violations of statutes prohibiting self-dealing and the use of public funds for private benefit were dismissed after plaintiff offered no admissible and competent evidence to support its allegations.
In Maloney, 853 F.3d at 1007, plaintiff’s right-of-publicity and unfair-competition claims brought against a website that hosted and licensed photographs owned or controlled by the NCAA by a putative class of former collegiate student-athletes were dismissed because the claims were preempted by the Copyright Act.
In Colyear, 9 Cal. App. 5th at 136, a quiet title action was dismissed in connection with a tree-trimming dispute between adjacent homeowners in a homeowners association because plaintiff (who filed an application invoking the association’s dispute-resolution process) withdrew his application, thereby mooting the quiet title action.
In other actions, however, plaintiffs successfully overcame anti-SLAPP motions, showing a probability of prevailing on their claims. For example:
In Safari Club International, 845 F. 3d at 1264, an anti-SLAPP motion seeking to dismiss claims for negligence, invasion of privacy, and violation of Penal Code Section 632 that arose from the alleged surreptitious recording of the exiled president of an international wildlife-conservation organization was defeated after plaintiffs showed a probability of success on these claims.
In Dickinson v. Cosby, Jr., 17 Cal. App. 5th 655, 684 (2017), a model and reality television actress’s lawsuit for defamation, false-light invasion of privacy, and intentional infliction of emotional distress against comedian Bill Cosby and his lawyer that arose from a demand letter and press release issued by defense counsel, plaintiff overcame the defendants’ anti-SLAPP motion by showing that the demand letter was sent without a good-faith contemplation of litigation and that both the letter and the press release contained statements of provable fact rather than opinion.
In Medley Capital Corporation v. Security National Guaranty, Inc., 17 Cal. App. 5th 1333, 1348-1349 (2017), a malicious prosecution action brought by a loan servicer against a borrower after the borrower filed a cross-complaint for fraud, the borrower’s anti-SLAPP motion was defeated when the loan servicer demonstrated a likelihood of prevailing on the malicious prosecution claim.
And, in Urick, 15 Cal. App. 5th at 1198, an anti-SLAPP motion was defeated because the trust beneficiary who filed a petition alleging a violation of the trust’s “no contest” cause demonstrated a reasonable probability of prevailing on the issue of probable cause.
Exemptions to the Anti-SLAPP Statute
There are four situations in which a plaintiff’s complaint may be exempt from having to satisfy the rigors of the 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. See Cal. Civ. Proc. § 425.17 et seq.; Flatley v. Mauro, 39 Cal. 4th 299, 315-316 (2006).
In 2017, a few appellate rulings addressed these exemptions.
In San Diegans for Open Government, 11 Cal. App. 5th at 496-501, the appellate court found that the plaintiff’s lawsuit was subject to the anti-SLAPP statute because the defendant news organization was protected under the “media exception” to the public-interest exemption – CCP § 425.17, subdivision (d)(1) – because defendants’ negotiation and execution of contracts—noncommunicative conduct—was done in furtherance of its free-speech right to gather, receive, or process information for communication to the public.
In Klem, 17 Cal. App. 5th at 611, the appellate court determined that the public-interest exemption was not satisfied by the plaintiff’s complaint because the plaintiff’s “slander of title claim concerns only himself, not the public” and “tellingly, in his [unfair competition claim], Klem states ‘Plaintiff seeks on his own behalf treble damages.’” (Emphasis added.) Additionally, the appellate court also found the Flatley criminal-illegality exemption was not triggered because the defendant insurer “has not conceded illegal conduct, and Klem has provided no conclusive evidence of illegality.” Id. at 610.
In Cross v. Facebook, 14 Cal. App. 5th 190, 200 (2017), the appellate court determined that the plaintiff failed to satisfy the commercial-speech exemption to the anti-SLAPP statute (CCP 425.17, subd. (c)(1), (2)) because although Facebook sells advertising, “it is not ‘primarily engaged in the business of selling or leasing goods or services,’” as the exemption requires, and the plaintiff didn’t challenge any commercial statements by Facebook and also failed to identify any representation of fact by Facebook that it would remove any objectionable content.
And in Safari Club International, 845 F.3d at 1259, applying Flatley and denying the criminal-illegality exemption to the anti-SLAPP statute, the 9th Circuit Court of Appeals observed that the defendant’s criminal illegality must be conceded or the evidence must be “uncontroverted and conclusive” to trigger the Flatley exemption from anti-SLAPP; “To find otherwise would eviscerate the anti-SLAPP statute’s protections because the plaintiff could preclude the statute’s application simply by alleging criminal conduct by the defendant.” See also, Optional Capital, 18 Cal. App. 5th at 115, n. 7 (Flatley criminal-illegality exemption not satisfied).
The Availability of Anti-SLAPP Motions in Federal Court
Finally, there has been a split in the federal circuits as to the viability of anti-SLAPP motions in federal court since 2015. 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). Anti-SLAPP motions remain viable in the district courts within the 9th Circuit when the court is sitting in diversity or hearing-pendent state law claims. In Schwern v. Plunkett, 845 F.3d 1241, 1244-1245 (9th Cir. 2017), the 9th Circuit affirmed its jurisdiction to review denials of anti-SLAPP motions under Oregon’s anti-SLAPP statute, which, like California’s statute, grants immunity from suit as Oregon’s later-enacted right of immediate appeal corroborates.
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).