Here is an interesting case. In Paterno v. Superior Court (2008) Cal.App.4th 1432 (June 13, 2008) the Court of Appeal (Fourth Appellate District, Division 3) issued a peremptory writ directing the trial court to vacate the order allowing Plaintiff to conduct limited discovery on the issue of malice and to issue a new and different order denying the motion. Among other things, the court held that a showing of provably false assertions of fact is necessary for discovery regarding malice while an anti-SLAPP motion is pending. This appears to be a new requirement in order to lift the discovery ban while an anti-SLAPP motion is pending under California law. If subsequent courts agree with the Paterno decision, it will become more difficult for Plaintiffs to prevail in defamation cases where Defendants raise the issue of malice.
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