By THOMAS R. BURKE, KELLI L. SAGER, ROCHELLE L. WILCOX, and NICOLETTE VAIROThe California Supreme Court unanimously decided earlier in the year that in ruling on an anti-SLAPP motion, the context of a defendant’s statement—such as the commercial nature of the statement, the identity of the speaker, the identity of the audience, and the statement’s intended purpose—”is relevant though not dispositive, in analyzing whether the statement was made ‘in furtherance of’ free speech ‘in connection with a public issue'” within the meaning of California Code of Civil Procedure § 425.16, subdivision (e)(4). Filmon.com, Inc. v. DoubleVerify, Inc., 7 Cal. 5th 133 (2019).

The California Supreme Court unanimously decided on Monday that in ruling on an anti-SLAPP motion, the context of a defendant’s statement – such as the commercial nature of the statement, the identity of the speaker, the identity of the audience and the statement’s intended purpose – "is relevant though not dispositive, in analyzing whether the statement was made 'in furtherance of' free speech 'in connection with a public issue'" within the meaning of California Code of Civil Procedure § 425.16, subdivision (e)(4). Filmon.com, Inc. v. DoubleVerify, Inc., No. S244157 (Cal. May 6, 2019).

BY THOMAS R. BURKE1In 2019, California’s appellate courts issued 42 published opinions interpreting the state’s anti-SLAPP statute. Cal. Civ. Proc. § 425.16 et. seq. Litigants filed at least 435 anti-SLAPP motions in California’s trial courts according to their reporting to the Judicial Council.

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.”

adoption and development of anti-SLAPP legislation in other states; and, (iii) the split among federal courts as to the applicability of state anti-SLAPP laws. II. California’s Anti-SLAPP Statute and Recent DevelopmentsA. Unique Procedural Mechanisms Available Under California’s Anti-SLAPP StatuteAs a means to combat nuisance lawsuits that are intended to chill free speech, state legislatures have introduced legislation offering increased protection from those suits. California became the first state to introduce anti-SLAPP legislation in 1992, and by far has the most robust body of anti-SLAPP case law. California’s anti-SLAPP law provides for a “screening mechanism” by which the plaintiff who brings an action arising out of protected speech or petition activity, at the outset of the SLAPP suit, must “make a prima facie showing [verified under oath] which would, if proved at trial, support a judgment in [the plaintiff’s] favor.” Wilcox v. Super. Ct., 27 Cal. App. 4th 809, 823 (1994); Cal. Civ. Proc. Code § 425.16(b)(1). Specifically, once the moving defendant has demonstrated that the plaintiff’s cause of action arises from “protected” speech or activity, “the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim.” Kyle v. Carmon, 71 Cal. App. 4th 901, 907 (1999).This screening process, in effect, functions much like a motion for summary judgment, with the defendant being able to challenge the merits of a plaintiff’s case. One difference, however, is that the filing of a motion to strike under the anti-SLAPP statute in California automatically stays discovery. See Hewlett-Packard Co. v. Oracle Corp., 239 Cal. App. 4th 1174, 1185 (2015); Cal. Civ. Proc. Code § 425.16(g). Another difference is that, unlike a motion for summary judgment, an anti-SLAPP motion to dismiss places the burden on a plaintiff to demonstrate that they possess a “legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.” College Hospi

By Thomas R. BurkeIn August 2016, the California Supreme Court decided how the state’s anti-SLAPP statute, Cal. C.C.P. § 425.16 et seq., operates in “mixed-conduct” situations—i.e., where a plaintiff’s cause of action combines allegations about a defendant that the statute protects along with allegations of unprotected activity. Baral v. Schnitt, 1 Cal. 5th 376 (2016).

Boal subsequently wrote the screenplay for “The Hurt Locker.” Sarver sued the film’s creators, claiming that the movie’s main character was based on his own life story, in violation of his right of publicity; he also claimed that portions of the film defamed him and placed him in a false light.Almost a year after Sarver filed his complaint, the defendant filmmakers filed special motions to strike under California’s SLAPP statute, California Code of Civil Procedure § 425.16. Sarver argued that the motions were untimely under C.C.P. § 425.16(f)—which provides that a SLAPP motion must be filed within 60 days after service of the complaint, absent a finding of good cause for the delay—but the district court exercised its discretion to accept the motions despite the passage of time on the grounds that the case was still in its early stages. Sarver v. the Hurt Locker LLC, 2011 WL 11574477, at *4, n.5 (C.D. Cal. Oct. 13, 2011).The district court then granted the defendants’ SLAPP motions in their entirety, finding that the alleged use of Sarver’s life story was constitutionally protected.

Boal subsequently wrote the screenplay for “The Hurt Locker.” Sarver sued the film’s creators, claiming that the movie’s main character was based on his own life story, in violation of his right of publicity; he also claimed that portions of the film defamed him and placed him in a false light.Almost a year after Sarver filed his complaint, the defendant filmmakers filed special motions to strike under California’s SLAPP statute, California Code of Civil Procedure § 425.16. Sarver argued that the motions were untimely under C.C.P. § 425.16(f)—which provides that a SLAPP motion must be filed within 60 days after service of the complaint, absent a finding of good cause for the delay—but the district court exercised its discretion to accept the motions despite the passage of time on the grounds that the case was still in its early stages. Sarver v. the Hurt Locker LLC, 2011 U.S. Dist. LEXIS 157503, *11 n.5 (C.D. Cal. Oct. 13, 2011).The district court then granted the defendants’ SLAPP motions in their entirety, finding that the alleged use of Sarver’s life story was constitutionally protected.

Mr. Sarver sued the film’s creators, claiming that the movie’s main character was based on his own life story, in violation of his right of publicity; he also claimed that portions of the film defamed him and placed him in a false light. Almost a year after Mr. Sarver filed his complaint, the defendant filmmakers filed special motions to strike under California’s SLAPP statute, California Code of Civil Procedure § 425.16. Mr. Sarver argued that the motions were untimely under C.C.P. § 425.16(f) — which provides that a SLAPP motion must be filed within 60 days after service of the complaint, absent a finding of good cause for the delay — but the district court exercised its discretion to accept the motions despite the passage of time, on the grounds that the case was still in its early stages.

In 2015, many cases analyzed prong one of the statute – whether the plaintiff’s claims arose from the defendants’ challenged speech or petitioning activities. Cal. Civ. Proc. § 425.16 (b)(1) & (e). Two anti-SLAPP cases, both involving application of the anti-SLAPP statute, will be resolved by the California Supreme Court.