Is the anti-SLAPP Statute Being Abused?

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authority expressing concern with the expansion of the anti-SLAPP statute, and the explosion of published and unpublished decisions in this area.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.

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