California

To challenge a lawsuit as a SLAPP suit in California, a defendant must show that he is being sued for “any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Cal. Civ. Proc. Code 425.16 (2010). Under the statute, the rights of free speech or petition in connection with a public issue include four categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furtherance of the exercise of free-speech or petition rights in connection with a public issue or an issue of public interest. California courts consider several factors when evaluating whether a statement relates to an issue of public interest, including whether the subject of the statement at issue was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants and whether the statement contributed to debate on a topic of widespread public interest. Under this standard, statements reporting or commenting on controversial political, economic and social issues, from the local to the international level, would certainly qualify. Conversely, a California court has held that statements about a person who is not in the public eye do not relate to an issue of public interest. Dyer v. Childress, 55 Cal. Rptr. 3d 544 (Cal. Ct. App. 2007).

The California anti-SLAPP law allows a defendant to file a motion to strike the complaint, which the court will hear within 30 days unless the docket is overbooked. Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may order discovery to be conducted if the requesting party provides notice of its request to the other side and can show good cause for it. In ruling on the motion to strike, a California court will first determine whether the defendant established that the lawsuit arose from one of the statutorily defined protected speech or petition activities. Braun v. Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. Ct. App. 1997). If that is the case, the judge will grant the motion unless the plaintiff can show a probability that he will prevail on the claim. Cal. Civ. Proc. Code 425.16. In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to strike and any sworn statements containing facts on which the assertions in those documents are based.

If the court grants the motion to strike, it will impose costs and attorney fees on the other side. Moreover, the California anti-SLAPP law gives a successful defendant who can show that the plaintiff filed the suit to harass or silence the speaker rather than resolve a legitimate legal injury the ability to file a so-called “SLAPPback” suit against his opponent. 425.18. Under this remedy, a SLAPP defendant who won his motion to strike may sue the person who filed the SLAPP suit to recover damages for abuse of the legal process. Conversely, the defendant must pay the plaintiff’s costs and attorney fees if the court finds that the motion to strike was frivolous or brought solely to delay the proceedings. 425.16. Either party is entitled to immediately appeal the court’s decision on the motion to strike.