Opinions in the California Courts of Appeal Concerning the Anti-SLAPP Statute (CCP § 425.16)
Court of Appeal, 2d District, 2004 (on appeal from Los Angeles Co. Superior Court)
115 Cal.App.4th 306, 8 Cal.Rptr.3d 915
Slaney prepared an estimate for repair of an aircraft in support of a claim by third parties presented to Ranger Insurance. The
company denied the claim on grounds that the claim was fraudulently excessive and sued the insureds and Slaney for bad faith. Slaney's
motion for summary judgment was granted and he was dismissed from the suit. The insureds subsequently received a judgment against the company as well as punitive damages for malicious denial of their claim. Slaney then brought this action for malicious prosecution. The trial court denied the company's anti-SLAPP motion after concluding that Slaney presented sufficient evidence to establish a probability of prevailing on his complaint. The appellate court affirms. According to the court, the underlying judgment against the company, which included a finding of malice and an award of punitive damages, demonstrated a potential for recovery in the present case.
Court of Appeal, 2d District, 2003 (on appeal from Los Angeles Co. Superior Court)
112 Cal.App.4th 1005, 5 Cal.Rptr.3d 668
The owner of a mini-mall filed a complaint for injunctive relief against Ochoa, alleging he had organized ongoing demonstrations
against one of the mall's tenants, a club that produced nude shows. Ochoa filed an anti-SLAPP motion, but a month later the parties
stipulated to an injunction that regulated the manner of the demonstrations. Ochoa's motion was tabled to allow time for the
injunction to be tested and reviewed by the court. After a month and a half, the trial court, based on testimony about the conduct of the demonstrations, denied the anti-SLAPP motion on the grounds that plaintiffs had succeeded in demonstrating a probability of succeeding on its claim. In a lengthy opinion, the appellate court affirms, ruling that the trial court did not err in considering the same evidence for both the motion to strike and the injunction.
Court of Appeal, 4th District, 2006 (on appeal from San Diego Co. Superior Court)
136 Cal.App.4th 1392, 39 Cal.Rptr.3d 682
StaffPro filed a malicious prosecution suit against Elite which responded with an anti-SLAPP motion. The trial court granted Elite's motion, ruling that StaffPro failed to carry its burden of establishing a probability that it would prevail because it had not shown favorable termination or probable cause. The appellate court affirmed, holding that a severability analysis is improper in determining whether a malicious prosecution plaintiff has demonstrated favorable termination of an underlying lawsuit. Thus, since the first cause of action in the underlying suit had not terminated in favor of StaffPro, it could not demonstrate favorable termination, and therefore
could not prevail in its malicious prosecution suit.
Court of Appeal, 2nd District, 2002 (on appeal from Ventura Co. Superior Court)
99 Cal.App.4th 974, 121 Cal.Rptr.2d 719
Majorino and O'Brien sued several people after they were allegedly assaulted during a party at a private home. The home's owners
were among the named defendants; the owners tendered their defense to State Farm under their homeowner policy. State Farm then filed an
action for declaratory relief, seeking a judicial determination of its duty to indemnify the homeowners. In turn, Majorino and O'Brien filed an anti-SLAPP motion, arguing that State Farm's action was designed to chill their right to petition for legal redress. The trial court denied the motion, and the appellate court affirmed, concluding that Majorino and O'Brien had failed to demonstrate that State Farm's action for declaratory relief qualified as a SLAPP under Code of Civil Procedure section 425.16. "[T]he act which underlies and forms the basis for State Farm's declaratory relief action is not the personal injury lawsuit filed by appellants, but the [homeowners'] tender of the defense of that lawsuit under a policy that contains an arguably applicable exclusionary clause."
Court of Appeal, 2nd District, 2006 (on appeal from Los Angeles Co. Superior Court)
138 Cal.App.4th 256, 41 Cal.Rptr.3d 273
(Case summary in preparation.)
Court of Appeal, 2nd District, 2006 (on appeal from Los Angeles Co. Superior Court)
146 Cal.App.4th 300, 52 Cal.Rptr.3d 828
(Case summary in preparation.)
Court of Appeal, 4th District, 2007 (on appeal from San Diego Co. Superior Court)
157 Cal.App.4th 1385, 69 Cal.Rptr.3d 561
(Case summary in preparation.)
Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
Court of Appeal, 2nd District, 2004 (on appeal from Los Angeles Co. Superior Court)
122 Cal.App.4th 1049, 18 Cal.Rptr.3d 882
In response to Pueblo's lawsuit against it, Sylmar filed a cross-complaint alleging fraud among other actions. Pueblo filed an
anti-SLAPP motion to strike the cross-complaint for fraud. Before the hearing on the motion, Sylmar filed an amended cross-complaint. The trial court granted the anti-SLAPP motion. On appeal Sylmar argued that its amended cross-complaint made the anti-SLAPP motion moot. The appellate court holds that a plaintiff may not avoid a hearing on an anti-SLAPP motion by filing an amended pleading, and thus, if the motion is granted, may not avoid the mandatory award of costs and attorney fees to the SLAPP target.
Court of Appeal, 2d District, 2008 (on appeal from Los Angeles Co. Superior Court)
160 Cal.App.4th 482, 72 Cal.Rptr.3d 847
(Case summary in preparation.)
Court of Appeal, 6th District, 2008 (on appeal from Santa Clara Co. Superior Court)
164 Cal.App.4th 802, 79 Cal.Rptr.3d 407
Appellant Tendler obtained a pre-lawsuit discovery order in an Ohio state court directed to Google, from whom he sought to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Tendler then filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The anonymous individuals filed an anti-SLAPP motion. The court held that a request for a subpoena is not a "cause of action," and therefore cannot be subject to an anti-SLAPP motion. In his concurrence, Justice McAdams urged the Legislature to consider whether the anti-SLAPP law should be expanded to include such third-party subpoena requests. As of Jan. 1, 2009, amendments to Code of Civil Procedure sections 1987.1 and 1987.2 provide that in a successful motion to quash such a subpoena, the court shall award the amount of the reasonable expenses, including attorney fees, incurred in making the motion.
Court of Appeal, 3d District, 2005 (on appeal from Yolo Co. Superior Court)
131 Cal.App.4th 1534, 33 Cal.Rptr.3d 145
Plaintiffs, employees of Davis Community Church, sued the church and others for defamation and emotional distress, alleging that
church officials falsely accused them of having an inappropriate sexual relationship with a minor in the course of their church work. The trial court granted defendants' anti-SLAPP motion. The appellate court affirms the order, concluding that private communications concerning issues of public interest are protected by the anti-SLAPP statute (see Averill v. Superior Court) and plaintiffs had not demonstrated a probability of prevailing on their claims.
Court of Appeal, 1st District, 2005 (on appeal from Alameda Co. Superior Court)
126 Cal.App.4th 635, 24 Cal.Rptr.3d 619
Quintero was part of organized public protests against Thomas, his landlord. After Quintero and others appeared at Thomas's
church, Thomas took action against Quintero by filing a petition seeking injunctive relief against civil harassment (Civil Code
section 527.6). Quintero responded with an anti-SLAPP motion, which the trial court denied. The appellate court reverses. Held: A Section 527.6 petition to enjoin civil harassment is subject to an anti-SLAPP motion to strike. However, an application for a temporary restraining order (TRO), issued pending a hearing on the petition for injunctive relief, is not subject to an anti-SLAPP motion. The request for a TRO does not qualify as a "cause of action" under the anti-SLAPP statute.
Court of Appeal, 4th District, 2004 (on appeal from San Diego Co. Superior Court)
118 Cal.App.4th 392, 13 Cal.Rptr.3d 353
This case arose because of a split in the ranks of organized cat breeders. The founder of The Traditional Cat Association sued defendants for allegedly defamatory statements published on their website. The trial court denied defendants' anti-SLAPP motion to strike the complaint, concluding that plaintiffs had demonstrated a probability of prevailing on their complaint. The court's decision was based on its ruling that defendants' statute of limitations defense in their anti-SLAPP motion was not a proper issue for determination under the terms of the anti-SLAPP statute. The appellate court finds this conclusion erroneous. Moreover, it rejects plaintiffs' argument that a cause of action for defamation arising from statements posted on a website arises continuously while the website is operating, holding that the single publication rule in the law of defamation applies to statements published on websites. Because defendants posted the alleged defamatory statements more than a year before plaintiffs filed their complaint, the action for defamation is barred by the statute of limitations. This is the first California court to adopt the single-publication rule for web publishing.
Tuchscher Development Enterprises, Inc. v. San Diego Unified Port District
Court of Appeal, 4th District, 2003 (on appeal from San Diego Co. Superior Court)
106 Cal.App.4th 1219, 132 Cal.Rptr.2d 57
Plaintiff sued the Port for a variety of business-related causes of action, alleging that the Port had interfered with an exclusive negotiating agreement between plaintiff and others concerning development of bayfront property. The Port filed an anti-SLAPP motion,
arguing that the lawsuit arose from the Port's review of plans for the development. The trial court granted the motion. On appeal plaintiff argued that no issue concerning the development project was before the Port in any official process when the Port commented on the project. Even if that were true, the appellate court says, the project was nevertheless a matter of public interest and therefore the Port's comments were protected by the anti-SLAPP statute. Because the court also finds that plaintiff did not demonstrate a probability of prevailing on its claims, it affirms the grant of the motion.
Court of Appeal, 1th District, 2006 (on appeal from San Francisco Co. Superior Court)
136 Cal.App.4th 164, 39 Cal.Rptr.3d 21
Plaintiff Tutor-Saliba Corporation sued the City Attorney of San Francisco for allegedly defamatory statements he made in a speech
before the San Francisco Chinese-American Democratic Club regarding a lawsuit he had filed against plaintiff. The trial court granted defendant's anti-SLAPP motion, concluding that the alleged defamatory statements were absolutely privileged under Civil Code section 47(a) ("official duty privilege"), as well as under Government Code sections 821.6 and 820.2 ("prosecutorial immunity" and "discretionary immunity," respectively). The appellate court affirmed.
U.S. Western Falun Dafa Association v. Chinese Chamber of Commerce
Court of Appeal, 1st District, 2008 (on appeal from San Francisco Co. Superior Court)
163 Cal.App.4th 590, 77 Cal.Rptr.3d 710
(Case summary in preparation.)
United States Fire Insurance Company v. Sheppard, Mullin, Richter & Hampton
Court of Appeal, 1st District, 2009(on appeal from San Francisco Co. Superior Court)
171 Cal.App.4th 1617, 90 Cal.Rptr.3d 619
(Case summary in preparation.)
Court of Appeal, 6th District, 2005 (on appeal from Monterey Co. Superior Court)
| Note! Opinion superseded by California Supreme Court's granting of petition for review on Feb. 6, 2006 (S140911). |
Plaintiffs sued City of Salinas for allegedly engaging in partisan campaigning, based on the City's statements made in a newsletter to residents, and information and analyses posted on its website. The trial court granted the City's anti-SLAPP motion. The appellate court affirmed, holding that the anti-SLAPP statute applied because the action arose out of speech regarding a matter of public interest, and that plaintiff failed to demonstrate that the City's statements expressly advocated an election outcome and thus could not prevail on the merits.
Court of Appeal, 3d District, 2007 (on appeal from Yolo Co. Superior Court)
146 Cal.App.4th 1387, 53 Cal.Rptr.3d 647
(Case summary in preparation.)
Court of Appeal, 2nd District, 2005 (on appeal from Los Angeles Co. Superior Court)
126 Cal.App.4th 363, 23 Cal.Rptr.3d 816
City refused to process plaintiffs' application for a "coastal development permit" because the city's right to do so was the subject of a lawsuit by the city against the California Coastal Commission. Plaintiffs filed a petition for writ of mandate to require the city to process their application. The city moved to dismiss the petition as a SLAPP. The trial court denied the anti-SLAPP motion and refused to dismiss the petition. The appellate court affirms on the grounds that plaintiffs' petition arose from the city's refusal to process an application, not from the city's lawsuit against the Coastal Commission. Although the city could not claim the protection of the
state's anti-SLAPP statute, it was not left defenseless in preserving its case against the Coastal Commission.
Court of Appeal, 6th District, 2005 (on appeal from San Benito Co. Superior Court)
127 Cal.App.4th 1006, 26 Cal.Rptr.3d 350
Two candidates for public office sought damages for libel and other torts based on statements posted on a public website. Defendant's anti-SLAPP motion was denied on the grounds that the allegedly libelous statements could be shown to have exceeded privileges afforded under state law and the U.S. Constitution. The appellate court reverses. According to the court, plaintiffs' claims fell squarely within the protection of the anti-SLAPP statute, requiring plaintiffs to show they could prevail on the merits, and plaintiffs failed to carry this burden.
Court of Appeal, 4th District, 2001 (on appeal from Orange Co. Superior Court)
93 Cal.App.4th 1432, 114 Cal.Rptr.2d 69
Walker, a California Highway Patrolman, arrested Kiousis for suspected drunk driving. After pleading guilty, Kiousis filed a citizen complaint against Walker with the CHP, alleging conduct inappropriate for an officer. The CHP determined the complaint was without merit, and Walker then sued Kiousis for defamation. Civil Code section 47 generally creates an absolute privilege for statements made in the course of an official proceeding. However, section 47.5 creates an exception, allowing a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false complaint about the office. Kiousis moved to dismiss Walker's suit, arguing that Civil Code section 47.5 was unconstitutional and therefore his complaint to the CHP was protected under the anti-SLAPP statute. The trial court granted the motion to strike, but on the grounds that Walker had not demonstrated a probability of prevailing on his lawsuit, as required by the anti-SLAPP statute, because he had not shown he sustained any actual damage. The appellate court affirmed the granting of the motion to strike, but on the grounds that section 47.5 is unconstitutional because it impermissably regulates speech based on the content of the speech.
Court of Appeal, 2d District, 2003 (on appeal from Los Angeles Co. Superior Court)
111 Cal.App.4th 744, 3 Cal.Rptr.3d 909
In a dispute over use of a vacant lot owned by Wang, Hartunian obtained a permanent restraining order against Wang. Hartunian summoned the police on several occasions to deal with alleged violations of the order, and on one occasion effected a citizen's arrest of Wang. Wang sued Hartunian alleging false arrest, false imprisonment, and abuse of process among other causes of action. Hartunian's special motion to strike the complaint as a SLAPP was granted by the trial court, which concluded that Wang was not likely to prevail on his claims. The appellate court reverses, holding that a citizen's arrest is not a protected activity under the anti-SLAPP statute.
Court of Appeal, 4th District, 2007 (on appeal from San Bernadino Co. Superior Court)
153 Cal.App.4th 790, 63 Cal.Rptr.3d 575
(Case summary in preparation.)
Court of Appeal, 3d District, 2006 (on appeal from Sacramento Co. Superior Court)
141 Cal.App.4th 15, 45 Cal.Rptr.3d 633
Plaintiffs sued defendants for malicious prosecution. The trial court granted defendants’ anti-SLAPP motion and the court
of appeal affirmed. On remand, the trial court awarded attorney fees for the work on appeal as well as for defendants' challenge to plaintiffs' undertaking to stay enforcement of the judgment. Plaintiffs appealed the award of attorney fees for the undertaking. The appellate court affirmed, finding that not permitting attorney fees for such efforts would be inconsistent with the Legislature's intent to encourage continued participation in free speech and petition activities.
Court of Appeal, 3d District, 2003 (on appeal from Shasta Co. Superior Court)
110 Cal.App.4th 1122, 2 Cal.Rptr.3d 385
Weinberg sued Feisel for defamation, alleging that Feisel told others that Weinberg had stolen a valuable collector's item. Feisel moved to strike the complaint as a SLAPP, contending that his statements accused plaintiff of criminal activity and that criminal
activity is always a matter of public interest. The trial court denied the motion, noting that Feisel never reported his suspicions to law enforcement officials and offered no evidence that he intended to file civil charges against plaintiff. The appellate court affirms. The court concludes that nothing in the record supports even an arguable suggestion that Feisel's statements constituted speech protected by the First Amendment and therefore plaintiff's causes of action were not subject to dismissal under the anti-SLAPP statute. "Defendant has failed to demonstrate that his dispute with plaintiff was anything other than a private dispute...."
Court of Appeal, 2d District, 2002 (on appeal from Los Angeles Co. Superior Court)
103 Cal.App.4th 210, 126 Cal.Rptr.2d 608
Attorney Lieberman represented homeowners in an action against White for slander of title, and the trial court found White liable. An appellate court reversed on the grounds the action was not supported by substantial evidence. Subsequently White sued Lieberman for malicious prosecution of the slander action. The trial court sustained Lieberman's demurrer, but refused to consider Lieberman's
anti-SLAPP motion on the grounds that it was moot in view of the successful demurrer. The appellate court concludes that the trial court erred in determining that Lieberman's motion was moot. Because a malicious prosecution action is within the provisions of the anti-SLAPP statute, and there is no possibility White can prevail, the only matter left for the trial court's consideration is the amount of attorney fees. (See Yu v. Signet Bank/Virginia, where the same issue is decided similarly.)
Court of Appeal, 2d District, 2008 (on appeal from Ventura Co. Superior Court)
167 Cal.App.4th 769, 84 Cal.Rptr.3d 428
(Case summary in preparation.)
Court of Appeal, 1st District, 2004 (on appeal from San Francisco Co. Superior Court)
121 Cal.App.4th 883, 17 Cal.Rptr.3d 497
Brokerage firm sued Wolk, alleging Wolk had made defamatory statements about its business integrity on her website, where Wolk publishes information for the general public about a special type of life insurance policy brokered by plaintiffs. Wolk moved to
strike the claim for defamation as a SLAPP; the trial court granted the motion. The appellate court reverses the ruling. The court agrees that the anti-SLAPP statute applies in this case but concludes that plaintiffs showed the requisite probability of prevailing on their claim for defamation.
Court of Appeal, 2d District, 1994 (on appeal from Los Angeles Co. Superior Court)
27 Cal.App.4th 809, 33 Cal.Rptr.2d 446
Several court reporters brought suit against an alliance of court reporters, claiming unfair business practice and interference
with plaintiffs' existing contracts and prospective economic advantages. Defendants cross-complained for damages arising from a
flyer circulated by the plaintiffs to raise money for litigation costs. The trial court's denial of a special motion to strike the
cross-complaint is reversed.
Court of Appeal, 4th District, 2002 (on appeal from San Diego Co. Superior Court)
99 Cal.App.4th 443, 121 Cal.Rptr.2d 275
Plaintiffs appealed an order granting an anti-SLAPP motion but dismissed the appeal before it was decided. Defendant moved for an
award of attorney fees in connection with the appeal but the court denied recovery of fees. Defendant appealed the denial. The court of
appeal reverses, holding that defendants in a SLAPP are entitled to an award of attorney fees incurred in connection with defending the
anti-SLAPP motion on appeal even when plaintiffs voluntarily dismiss the appeal. Once the trial court has granted an anti-SLAPP motion, the judicial decision that the action was a SLAPP remains intact unless reversed by the court of appeal and thus the defendant remains the "prevailing party" for purposes of Code of Civil Procedure section 425.16.
Court of Appeal, 3rd District, 2006 (on appeal from Orange Co. Superior Court)
141 Cal.App.4th 1201, 46 Cal.Rptr.3d 790
(Case summary in preparation.)
World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc.
Court of Appeal, 3rd District, 2006 (on appeal from Ventura Co. Superior Court)
172 Cal.App.4th 1561, 92 Cal.Rptr.3d 227
(Case summary in preparation.)
Court of Appeal, 1st District, 2002 (on appeal from Alameda Co. Superior Court)
103 Cal.App.4th 298, 126 Cal.Rptr.2d 516
Yu filed a class action on behalf of California residents against two banks for abuse of process and unfair business practice
after the banks filed debt-collection actions in Virginia, their home state. The trial court sustained the banks' demurrer to a third amended complaint but denied the banks' concurrent anti-SLAPP motion on the grounds the latter was moot in light of the successful demurrer. The banks appealed. Both parties appealed. On appeal Yu argued that, because the anti-SLAPP motion was filed a year after the original complaint, it was untimely under the anti-SLAPP statute. The appellate court holds that an amended complaint is a "complaint" under the anti-SLAPP statute (which requires that a special motion to strike be filed "within 60 days of the service of the complaint"), and, since the motion in this case was filed within 60 days of service of the third amended complaint, it was timely. In addition, the anti-SLAPP motion is no longer moot, the court concludes, in light of the court's reversal of the trial court's ruling on the demurrer. Nevertheless, the court affirms the trial court's denial of the anti-SLAPP motion but on the grounds that Yu's claims "have sufficient potential merit to withstand Banks' anti-SLAPP motion." The case is interesting because the filing of a collection action in a distant state in effect deprives customers of the opportunity to defend themselves. Nevertheless, the court filing is a protected First Amendment activity under the anti-SLAPP statute, so only a determination that there is a likelihood the plaintiffs might prevail preserves the complaint for abuse of process.
Court of Appeal, 1st District, 1996 (on appeal from San Francisco Co. Superior Court)
48 Cal.App.4th 1114, 55 Cal.Rptr.2d 909
| Note! This opinion was disapproved by the California Supreme Court in Briggs v. Eden Council for Hope and Opportunity. |
Zhao sued Wong for slander, alleging that Wong had falsely accused her of murdering his brother in a newspaper article about a coroner's investigation into the brother's mysterious death and a contest in probate court over the brother's will. The trial court granted a special motion to strike the complaint, saying that "if you make a comment about a judicial proceeding, that's an act in furtherance of a person's right of petition [or] free speech." The appellate court reverses, concluding that the brother's death, although newsworthy, did not rise to the level of a public issue protected by the anti-SLAPP statute.