California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

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Well, I came across an unpublished California decision in which the court decided that very question in the negative.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

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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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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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