Tag Archives: Anti-SLAPP

Baral v. Schnitt: The Roadmap For Anti-SLAPP Motions Has Dramatically Changed

Neil Bardack 
Neil Bardack
August 9, 2016

The California Supreme Court in Baral v. Schnitt, No. S225090 (filed 8/1/2016),  has clarified a “perplexing” conflict among several Districts of the Court of Appeal about the application of  Code of Civ. Proc. Section 425.16(b)(1) (the Anti-SLAPP statute) when applied to strike allegations in a mixed cause of action,  where it combines allegations of activity protected by the statute with allegations of unprotected activity.

Protected activity arises out of the defendant’s exercise of the constitutional rights of free speech or petition.  When pleadings assert a cause of action that implicates both those activities and unprotected activities, there was a disagreement in the appellate districts and even divisions as to whether the statute supported applying the Anti-SLAPP motion to the whole cause of action, which often resulted in the denial of the motion.  In essence, by artful pleading of intertwined allegations, a plaintiff could avoid dismissal of the cause of action and potential exposure to attorney’s fees in those courts that held that the motion lay only to strike an entire count as pleaded in the complaint, even where  protected activity was alleged.  This result thwarted the purpose of the statute. which is to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.

In Baral, the plaintiff pleaded in a single cause of action that Schnitt committed both libel and slander by knowingly providing false information about Baral’s possible misappropriation of company assets to an outside accounting firm hired to investigate the company owned by them; this was protected activity.  However, the plaintiff linked this assertion with allegations that, once discovered as false,  Schnitt refused to correct.  The false information was ultimately published, which was not protected activity and would not be reachable by Schnitt’s  Anti-SLAPP motion.  The trial court’s denial of the motion was upheld by the Court of Appeal, which found that the Anti-SLAPP statute applied only to entire causes of action as pleaded, or to the complaint as a whole, not to isolated allegations with causes of action.

The Supreme Court determined that this result unduly limited the relief contemplated by the Legislature in enacting the Anti-SLAPP statute.  It approached the resolution by starting with the definition of a “cause of action” as intended to be subject to the motion to strike.  The high court held that the Legislature intended to require a plaintiff to show a probability of prevailing on “the claim” arising from protected activity, and this result should not depend on the form of the pleading.  The purpose of the statute is to protect activity, and courts may rule on the plaintiff’s specific claim of protected activity.

To assist the litigants, the Supreme Court provided the following roadmap of the showings and findings required by under section 425.16(b):

At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.  When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.  The court, without resolving evidentiary conflicts must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.  Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.

Although there was much confusion in applying the Anti-SLAPP motion to allegations which were purposefully jumbled to avoid this special motion to strike, is the solution now cleared of the mud?

CA Court Shields Prelitigation Communications Between Parties

Neil Bardack 
Neil Bardack
February 17, 2016

In Karnazes v. Ares, B246308, the Court of Appeal recently extended the protections of the litigation privilege under Civ. Code Section 47 (b) to communications between parties made in anticipation of litigation.  In that case, an attorney represented one of the defendants in an action brought by a woman who alleged negligence and fraud, among other causes of action, in relation to investment advice.  The attorney was sued along with his client based upon the attorney’s email exchange with the plaintiff, in which he denied his client’s liability and stated that if his client were sued, he would represent him.  The plaintiff disputed that the communications were made by the attorney in his role as an attorney for his client.

When the complaint was filed, the plaintiff alleged that these communications were evidence of fraudulent activity. A motion to strike under the anti-SLAPP statute, Code Civ. Proc. Section 425.16(b(1)), was filed on the grounds that the communications were privileged as they were made in furtherance of a person’s right to petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. (Section 425.16(e).)

To avoid a SLAPP motion to dismiss, a plaintiff has to establish that there is a probability that the plaintiff will prevail on the claim. This evaluation requires a two-step process in the trial court. First, the court must decide whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If so, then the court must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. If it is determined that the cause of action arose from protected speech and that it lacks even minimal merit, it is subject to being stricken under the statute.

The court held that protected written or oral statements made in connection with judicial proceedings also included communications made preparatory to or in anticipation of such proceedings. Here, the communications by the attorney postured why his client would not be criminally liable and should prevail on the merits, and cautioned the pro per plaintiff not to directly contact his client. In response, the plaintiff failed to submit any factual evidentiary showing that respondent made any specific misrepresentation or that she relied on any to her detriment or to her damage. All of this was held to be protected speech.

The communications giving rise to a fraud claim were innocuous enough and the fact that the attorney was sued could be better explained by the fact that the plaintiff represented herself in pro per. That said, communications made in the heat of a dispute should be carefully considered to stay within the now-protected sphere of a SLAPP motion. The privilege may be lost, for instance, if what is said is not protected speech such as hate speech, defamatory speech, or speech that threatens criminal action rather than civil litigation.

The good result here is a decision that holds that the back-and-forth communications of parties who are disagreeing on legal rights and obligations are privileged if made in anticipation of a lawsuit, and, if it is apparent that litigation is a possible outcome, can be attacked under the anti-SLAPP statute.