I routinely hear prospective clients ask me whether they should file a cross-complaint in response to a SLAPP action. In most cases, they ask me this question because a previous attorney has advised them to do it. While filing a cross-complaint certainly escalates the litigation, it rarely serves the interests of the client.
So why do attorneys recommend such a course of action? Because they think that by raising the stakes they are shifting some of the risk of loss to the plaintiff. In most cases, however, this is wrong. First, what many attorneys don’t realize is that by filing a cross-complaint in response to a complaint, they may be subjecting their clients to the risk of an anti-SLAPP motion. Even if plaintiff’s motion turns out to be frivolous, the client will still have to pay his attorney to oppose it. And, the risk is not worth it since in most cases you can respond to a complaint with an ant-SLAPP motion and then file a cross-complaint (if necessary, warranted, and within the SOL) after the Court rules on the motion.
However, if the the statute of limitations is running, or if the nature of the cross-complaint is such that the risk of an anti-SLAPP motion is low, it may be wise to file a cross-complaint. Otherwise, try to avoid it. So beware if someone is quick to advise you to file a cross-complaint.