Is the anti-SLAPP Statute Being Abused?

Posted on February 3, 2011 by Adrianos Facchetti

In what will probably be one of the most significant anti-SLAPP cases of 2011, the First District in Grewal v. Jammu, expressed in no uncertain terms that the anti-SLAPP statute is being abused. Justice Richman, writing for the majority, took the opportunity to detail the particular abuses of Section 425.16, with a not so subtle plea to the Legislature to limit the application of the anti-SLAPP statute.

In support of its conclusion, the Court cites to various amendments to the statute (425.17, in particular), decisional authority expressing concern with the expansion of the anti-SLAPP statute, and the explosion of published and unpublished decisions in this area. The Court maintains that the glut of anti-SLAPP appeals has become a burden on its docket.

The Court's suggested remedy: eliminate the automatic right of appeal to defendants who lose at the trial level. 

While I respect the Court's concerns, eliminating the right to appeal would be a mistake.

The Court's recommendation merely shifts the burden to trial judges. It assumes that judges understand the complexities of the anti-SLAPP statute. While I have the utmost respect for the California Judiciary, my experience is that many trial judges are not very familiar with the anti-SLAPP procedure. And even though Judges make the right decision in most cases, I have personally seen reversible error in a number of situations. For example, some trial judges have refused to carefully consider objections to key evidence, which could have likely changed the outcome of the anti-SLAPP motion.

Eliminating the right to appeal would likewise prolong some cases which have no merit. Discovery would continue, motions would be made, and further burden trial judges. In this respect, the Court's recommendation is akin to dusting. The dust never disappears. It's just moved from one corner of the living room to the other.

I propose an alternative. Rather than eliminate the right to appeal, perhaps the Court could set up a special Division that screens anti-SLAPP appeals, much like the procedure used by the California Supreme Court to determine whether it will review cases. However, the standard would be more relaxed such that review would occur in more cases than in the case of a writ of mandate. Alternatively, the screening process could occur at the trial level. In any case, the legislature could increase the filing fee for anti-SLAPP motions.

There are many ways to tackle this problem. But a wholesale elimination of the right to appeal is not the answer.

 

 

Tags: , , ,

What Is The Standard of Review On An anti-SLAPP Appeal?

Posted on July 26, 2010 by Adrianos Facchetti

I outlined in a previous post how risky it is for a losing plaintiff on an anti-SLAPP motion to appeal a trial court's ruling. The primary reason being that a prevailing defendant may be awarded his attorney's fees for opposing the SLAPP at the trial and appellate levels.

But in this post I want to lay off the doom and gloom (after all, it's another sunny day in Los Angeles) and discuss what the standard of review is if you (whether Plaintiff or Defendant) choose to appeal a trial court's ruling.

A "standard of review" is lawyer-speak for how much deference an appellate court will give to a lower court in reviewing its decision. In the anti-SLAPP context, the standard of review is de novo (which means "anew") because such orders present pure questions of law. This means the appellate court gives no deference to the lower court's ruling and decides the matter with fresh eyes.

This apparently relaxed standard may encourage a losing party to appeal, however, in reality, most appellate decisions end up affirming the trial court's ruling for a number of reasons which I won't go into here. That coupled with the specter of getting hit with attorney's fees should cause an appealing party to stop and think before file an appeal.

 

If you liked this post, please leave a favorable comment down below. 

Tags: , , , , ,

A Little Known Requirement in the California anti-SLAPP Statute

Posted on May 17, 2010 by Adrianos Facchetti

I was not surprised last week when a Judge said that anti-SLAPP is a complicated area of law—it most certainly is. There are well over 350 published decisions on the subject, including several California Supreme court decisions. I often tell other lawyers that they need to be very careful in crafting their papers in support of or in opposition to an anti-SLAPP motion. One such piece of advice I often give is to be sure to comply with section 425.16(j)(1).

Section 425.16(j)(1) states:

“(j)(1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.”

This means that a party filing or opposing an anti-SLAPP motion must promptly transmit an endorsed copy of the caption page to the Judicial Council.

But what happens if the moving party fails to do so? Can the court deny the motion based on failure to comply with this provision alone?

Well, I came across an unpublished California decision in which the court decided that very question in the negative.

Here’s why:

  • The statute does not specify a penalty for non-compliance
  • There is no case law interpreting the statute to provide for a penalty for non-compliance
  • It was reasonable to conclude that if the legislature wanted to create such a penalty, it would have expressly done so
  • There was no prejudice to the other party

I think the court reached the right decision. The purpose of subdivision (j) is to monitor the number of anti-SLAPP motions and decisions to determine its effect—not to punish a non-complying party. However, you don't want to be in the position of making the bulleted arguments mentioned above. So, make sure you promptly transmit an endorsed copy of the caption page to the Judicial Council. You can do so by e-mail at: SLAPP@jud.ca.gov.

If you liked this post, please click here to receive a copy of my report, the "Ultimate Beginner's Guide to Defamation Law."

 

Tags: , , , , , , , ,

Are You Sure You Want to File An Appeal?

Posted on March 4, 2009 by Adrianos Facchetti

The vast majority of defamation appeals are taken after a trial court has granted a special motion to strike, also known as an anti-SLAPP motion.  Most of these appeals are affirmed.  In other words, the appeals are unsuccessful.

And while most appeals (other than defamation) are unsuccessful, losing an appeal in the defamation context can be particularly costly.

The reason is attorney fees.

Section 425.16 of the California Code of Civil Procedure (the so-called "anti-SLAPP statute") provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." This includes fees and costs incurred in defending an appeal of an order granting a special motion to strike.

This is effectively a double whammy.  

The defendant is entitled to attorneys fees expended in bringing the motion in the trial court AND defending the losing appeal.  You get hit twice.

And you might be thinking, but how much can this really cost me?

Well, I've seen fee awards ranging anywhere between $15,000 and $30,000, and even more in some instances.  It is very expensive.

So I ask you again . . .  Are you sure you want to file an appeal?

If you liked this post please feel free to subscribe  to receive free updates via e-mail or RSS.

 

Tags: ,