FROM: http://www.citmedialaw.org/legal-guide/anti-slapp-law-californiaIn accordance with Federal Laws provided For Educational and Information Purposes – i.e. of PUBLIC InterestAnti-SLAPP Law in CaliforniaNote: This page covers information specific to California. For general information concerning Strategic LawsuitsAgainst Public Participation (SLAPPs), see the overview section of this guide.You can use Californias anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you tofile a special motion to strike a complaint filed against you based on an "act in furtherance of [your] right ofpetition or free speech under the United States or California Constitution in connection with a public issue." Cal.Civ. Proc. Code § 425.16. If a court rules in your favor, it will dismiss the plaintiffs case early in the litigation andaward you attorneys fees and court costs. In addition, if a party to a SLAPP suit seeks your personal identifyinginformation, California law allows you to make a motion to quash the discovery order, request, or subpoena. Activities Covered By The California Anti-SLAPP StatuteNot every unwelcome lawsuit is a SLAPP. In California, the term applies to lawsuits brought primarily todiscourage speech about issues of public significance or public participation in government proceedings. Tochallenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an "act in furtherance of[your] right of petition or free speech under the United States or California Constitution in connection witha public issue." Although people often use terms like "free speech" and "petition the government" loosely inpopular speech, the anti-SLAPP law gives this phrase a particular legal meaning, which includes four categories ofactivities: 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.Cal. Civ. Proc. Code § 425.16(e)(1-4). As an online publisher, you are most likely to rely on the third categoryabove, which applies to a written statement in a public forum on an issue of public interest.Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146P.3d 510, 514 n.4 (Cal. 2006). The website does not have to allow comments or other public participation, so longas it is publicly available over the Internet. See Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897 (Cal. Ct. App.2001).Many different kinds of statements may relate to an issue of public interest. California courts look at factors suchas whether the subject of the disputed statement was a person or entity in the public eye, whether the statementinvolved conduct that could affect large numbers of people beyond the direct participants, and whether thestatement contributed to debate on a topic of widespread public interest. Certainly, statements educating the publicabout or taking a position on a controversial issue in local, state, national, or international politics would qualify.Some other examples include: Statements about the character of a public official, see Vogel v. Felice, 127 Cal. App. 4th 1006 (2005);
Statements about the financial solvency of a large institution, such as a hospital, see Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523 (2006); Statements about a celebrity, or a person voluntarily associating with a celebrity, see Ronson v. Lavandeira, BC 374174 (Cal. Super. Ct. Nov. 1, 2007); Statements about an ideological opponent in the context of debates about the Israeli-Palestinian conflict, see Neuwirth v. Silverstein, SC 094441 (Cal. Super. Ct. Nov. 27, 2007); and Statements about the governance of a homeowners association, see Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).In contrast, California courts have found other statements to be unrelated to an issue of public interest, including: statements about the character of a person who is not in the public eye, see Dyer v. Childress, 147 Cal. App. 4th 1273, 1281 (2007); and statements about the performance of contractual obligations or other private interests, see Ericsson GE Mobile Communs. v. C.S.I. Telcoms. Eng’rs. 49 Cal. App. 4th 1591 (1996).Although the anti-SLAPP statute is meant to prevent lawsuits from chilling speech and discouraging publicparticipation, you do not need to show that the SLAPP actually discouraged you from participating or speakingout. Nor do you need to show that the plaintiff bringing the SLAPP intended to restrict your free speech. Protections for Personal Identifying Information Sought in a SLAPP suitIn addition to providing a motion to strike, California law also allows a person whose identifying information issought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion toquash -- that is, to void or modify the subpoena seeking your personal identifying information so you do not haveto provide that information. Cal. Civ. Pro. Code § 1987.1. How To Use The California Anti-SLAPP StatuteThe California anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaintbrought against you for engaging in protected speech or petition activity (discussed above). If you are served witha complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing andarguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missingimportant deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of beingserved with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee thatit will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys fees if youwin your motion.One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. Whenyou file a motion to strike, the clerk of the court will schedule a hearing on your motion within thirty days afterfiling. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, theplaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions,at least not without first getting permission from the court.In ruling on a motion to strike, a court will first consider whether you have established that the lawsuit arises out ofa protected speech or petition activity (discussed above). Assuming you can show this, the court will then requirethe plaintiff to introduce evidence supporting the essential elements of its legal claim. Because a true SLAPP is notmeant to succeed in court, but only to intimidate and harass, a plaintiff bringing such a lawsuit will not be able tomake this showing, and the court will dismiss the case. On the other hand, if the plaintiffs case is strong, then thecourt will not grant your motion to strike, and the lawsuit will move ahead like any ordinary case.If the court denies your motion to strike, you are entitled to appeal the decision immediately.
In addition to creating the motion to strike, the statute also allows a person whose personal identifying informationis sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motionto quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifyinginformation so you do not have to provide that information.When you make your motion to quash, the court "may" grant your request if it is "reasonably made." In reviewingyour motion, the court will probably require the plaintiff to make a prima facie showing, meaning he or she mustpresent evidence to support all of the elements of the underlying claim (or, at least, all of the elements within theplaintiffs control). See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1171 fn. 12 (Cal. App. 6 Dist. 2008). If theplaintiff cannot make that showing, the court will probably quash the subpoena and keep your identity secret.If you are served with a SLAPP in California, you can report it to the California Anti-SLAPP Project and requestassistance. The California Anti-SLAPP Project also has two excellent guides on dealing with a SLAPP suit inCalifornia, Survival Guide for SLAPP Victims and Defending Against A SLAPP. In addition, the FirstAmendment Project has an excellent step-by-step guide to the legal process of defending against a SLAPP inCalifornia. What Happens If You Win A Motion To StrikeIf you prevail on a motion to strike under Californias anti-SLAPP statute, the court will dismiss the lawsuit againstyou, and you will be entitled to recover your attorneys fees and court costs. See Cal. Civ. Proc. Code §425.16(c).Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit inorder to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a "SLAPPback"suit against your opponent. A "SLAPPback" is a lawsuit you can bring against the person who filed the SLAPPsuit to recover compensatory and punitive damages for abuse of the legal process. See Cal. Civ. Proc. Code §425.18 (setting out certain procedural rules for "SLAPPback" suits). Section 425.18 contemplates bringing aSLAPPback in a subsequent lawsuit after the original SLAPP has been dismissed, but you might be able to bring aSLAPPback as a counterclaim in the original lawsuit. You should not underestimate the considerable expenserequired to bring a SLAPPback, like any lawsuit, to a successful conclusion.If your successful motion to quash arises out of a lawsuit filed in a California court, the judge has discretion toaward expenses incurred in making the motion. The court will award fees if the plaintiff opposed your motion "inbad faith or without substantial justification," or if at least one part of the subpoena was "oppressive." Cal. Civ.Pro. Code § 1987.2(a). But note that if you lose your motion to quash, and the court decides that your motion wasmade in bad faith, you may have to pay the plaintiffs costs of opposing the motion.If you successfully quash a California identity-seeking subpoena that relates to a lawsuit filed in another state, thecourt "shall" award all reasonably expenses incurred in making your motion - including attorneys fees - if thefollowing conditions are met: the subpoena was served on an Internet service provider or other Section 230 computer service provider; the underlying lawsuit arose from your exercise of free speech on the Internet; and the plaintiff failed to make his prima facie showing.Cal. Civ. Pro. Code § 1987.2(b).