"I Didn't Know The Law" Is Not A Good Excuse For Any Lawyer

Posted on January 26, 2010 by Adrianos Facchetti

I was researching a legal issue on Westlaw the other day and I ran into an interesting case where a lawyer admitted he wasn't aware of the anti-SLAPP statute. In Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285-286, an attorney brought an action in Sacramento County against co-counsel for various claims. The defendant filed an anti-SLAPP motion over 9 months after the second amended complaint was filed, and as a result, the court denied the anti-SLAPP motion on the ground that it "[was] dilatory, without good cause for failing to bring the motion earlier." Section 425.16(f) states: “The [anti-SLAPP] motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.”

Defendant appealed and his excuse for late filing was that he "did not become aware of the application of the anti-SLAPP statute to the case until it was suggested" by his later attorney--and even his later attorney had been counsel of record for over five months before filing the motion.

While attorneys cannot be expected to know all the law, not knowing a specific area of law is simply not a good excuse under any circumstance, especially not to a judge.

There are many lessons in this case but two good takeaways are:

  • It is common for otherwise competent attorneys to be unaware of the anti-SLAPP statute; and
  • It is never a good idea to represent yourself in a matter of consequence before a court.

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Can You Amend A Complaint After An Anti-SLAPP Motion Is Filed?

Posted on December 3, 2009 by Adrianos Facchetti

You're a plaintiff and you just received an anti-SLAPP motion from the defendant. Your lawyer reviews the motion and determines that it is persuasive and is likely to result in a victory for the defendant, unless your complaint is amended. Is the court required to permit an amendment under section 425.16? Does the court have discretion to allow you to amend the complaint?

The answer is not so simple.

The purpose of section 425.16 is to eliminate so-called SLAPP suits at an early stage of litigation before a defendant is required to spend a significant sum of money defending the litigation.  (SLAPP is an acronym for Strategic Lawsuit Against Public Participation). 

Therefore, it would seem contrary to the objective of the statute to allow plaintiff to plead around an anti-SLAPP motion, and thereby extend the litigation.

On the other hand, in California, there is a strong policy in favor of liberally construing pleadings and permitting amendments where it is in the interests of justice.

But that's just talk. All that matters is what the cases say on the subject.

The cases appear to be in agreement in that there is no express right in section 425.16 to be granted leave to amend a complaint. Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1052, 1054-1056.

In terms of discretion to amend, there appears to be some leeway because a court determined that:

"[the] trial court did not err in permitting plaintiff to amend her complaint to plead actual malice in conformity with the proof presented at the hearing on the strike motion."

Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 873.

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