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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