There are several stages to SLAPP litigation. You can expect some, or all, of the following key events in defending against a SLAPP:
Filing a Response You have a limited amount of time (typically, 30 days) to file and deliver “an initial responsive pleading.”
More...Your initial response, whether an answer, a special motion to strike, or other document, must be filed with the court and delivered to the other side after the date you are served with the summons and complaint – typically 30 days after you’ve been served, unless the plaintiff agrees to, or the court allows, a longer period.
Filing a Special Motion to Strike. This motion (also called an “anti-SLAPP motion”) generally must be filed 60 days from the date the complaint is served on you (received), and is the best way to put an end to a SLAPP early in the proceedings. Filing an anti-SLAPP motion is also considered a first responsive pleading (as discussed above).
More...If the judge finds that the plaintiff cannot show a minimal probability of winning, the court will “strike” the complaint, and dismiss the suit. The court will also order the plaintiff to pay your attorneys’ fees and costs. There must be a good basis for bringing the special motion to strike. If the court finds that it is frivolous, or is solely intended to cause unnecessary delay, the court will sanction you and order you to pay the attorneys’ fees and costs incurred by the other side in opposing your motion.
Dealing with Discovery. Discovery is the process by which parties formally gather information from each other in a lawsuit, but it is stayed (suspended) by the filing of a special motion to strike.
More...Depositions- Individuals are formally orally questioned by lawyers, under oath, as if on the witness stand.–
Interrogatories – Written questions by one party to the other which require a written answer, also under oath.–
Request for production of documents – A formal request to parties to turn over relevant documents.
Once a special motion to strike is filed pursuant to procedure of Code of Civil Procedure section 425.16, all discovery is stayed (suspended) until a judge rules on the special motion to strike or a party is given permission for specific discovery to proceed after a formal motion and a showing of good cause. This is important because even the process of having to answer discovery requests can be very expensive and can impact one’s willingness to speak out on public issues.
Opposition. Nine court days before the hearing on your motion, the plaintiff must file and serve its legal arguments and evidence in opposition to your motion.
Reply. Five court days before the hearing on your motion, you can file and serve your reply to the plaintiff’s opposition. This may include legal arguments, additional evidence, and your objections to the plaintiff’s evidence.
Hearing. At the hearing on your motion, the lawyers for each side (or the parties, if they are not represented by counsel) can make their oral arguments before the judge and respond to the judge’s questions and concerns (if any).
Possible outcomes:
Order by the Court. After a hearing on the special motion to strike, the judge will issue an order either granting or denying the motion. An order granting the special motion to strike will dismiss the applicable claims. If the court grants the motion, the defendant is entitled to an award of attorneys fees. If there are multiple “causes of action” (claims), the motion may be granted as to some and denied as to others.
Appeal. After the ruling on a special motion to strike, either party can immediately appeal the Court’s ruling. An appeal should be considered when the motion is denied. If an appeal is not pursued, the lawsuit may move into the trial phase. More...
Other considerations when defending against a SLAPP:
Insurance. Frequently, a SLAPP victim’s homeowner’s, renter’s or other insurance policy will cover, or potentially cover, at least part of the costs of defending against a SLAPP. Depending upon the facts and circumstances of your case and the provisions of your insurance policy, it may be advantageous to report the SLAPP to your insurer.
Dealing with Co-defendants. You may not be the only person being sued by a SLAPP filer. A common strategy is for the filer to sue all vocal opposition and name multiple defendants in the suit. In addition, the SLAPP filer can sue numerous as yet unnamed “DOE” defendants. This means that the SLAPP filer can, later in the case, replace a “DOE” defendant with a named individual. If you are one of a number of people being sued, you should consider joining together with the other defendants to file the anti-SLAPP motion.
Dealing with the Press. Certain cases will be of interest to the media. Getting favorable media coverage may help your case.
SLAPPing Back. A SLAPPback is a lawsuit filed after a SLAPP has been dismissed that seeks monetary damages, including for emotional distress and punitive damages, from the SLAPP filer on the basis that the original SLAPP constituted malicious prosecution.
If you are successful in getting a SLAPP dismissed, and you can show that the SLAPP was brought for a purpose other than to resolve the issue by legal means — for example, the case was filed for the purposes of harassment, needlessly piling up defense costs, silencing opposition, and without probable cause — consider SLAPPing back. A SLAPPback is essentially a malicious prosecution lawsuit, which claims damages for being subject to a maliciously filed lawsuit. This could include damages for emotional distress and punitive damages.
In the past, juries in some SLAPPback suits have ordered SLAPP filers to pay large amounts of damages to the original SLAPP target. Some examples of successful SLAPPbacks are below.
However, the decision to initiate SLAPPback litigation should not be entered into lightly. A SLAPPback, like the original lawsuit, can take years to reach a final resolution.
Moreover, a SLAPPback is itself likely to be subject to the special motion to strike procedure set forth in Code of Civil Procedure section 425.16. (However, the significance of such a motion is substantially reduced by section 425.18, which provides that the prevailing defendant attorney fee and immediate appeal provisions of section 425.16 do not apply to SLAPPbacks.)
Examples of successful SLAPPbacks:
In Leonardini v. Shell Oil Co., the California Third District Court of Appeal affirmed a jury award of $5,197,000 to a consumer advocate and union attorney who had been SLAPPed by an oil company for reporting to a state health agency that there were cancer-causing substances in a product of the oil company used in home plumbing. (1989, 216 Cal.App.3d 547, 264 Cal.Rptr. 883.)
In Wegis v. J. G. Boswell Company the California Fifth District Court of Appeal upheld an award of $11,100,000 to three family farmers who had been SLAPPed by a large corporate farmer for their publication of newspaper ads attacking the corporate farmer for its opposition to a water project ballot measure. (June 14, 1991, No. F011230, unpublished opinion.)
In Tanner v. DeCom Medical Waste Systems a St. Louis jury in 1989 awarded $86,500,000 to a hospital worker who had been SLAPPed for writing to a newspaper reporter criticizing a company for seeking a permit for a medical waste incineration plant. (See George Pring and Penelope Canan, Getting Sued for Speaking Out, pp. 124, 179.)
And in Humana Inc. v. Hemmeter, a Clark County (Nevada) district court awarded $9,800,000 to a doctor who had been SLAPPed by a large hospital chain for his advocacy of cost containment legislation before state legislative bodies and agencies.
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