California’s Anti-SLAPP Statute by ydb15644

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									Califor-niu Code o Civil Procedure $425.16:
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      (a) The Legislature finds and declares that there   has been a
disturbing increase in lawsuits brought primarily to chill the valid exercise
of the constitutional rights of freedom of speech and petition for the redress
of grievances. The Legislature finds and declares that it is in the public
interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through abuse
of the judicial process. To this end, this section shall be construed broadly.

       (b) (1 A cause of action against a person arising f?om any act of that
person in furtherance of the person’sright of petition or free speech under
the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.

      (2) Xn making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.
      (3) If the court determines that the plaintiff has established a
probability that he or she will prevail on the claim, neither that
determination nor the fact of that determination shall be admissible in
evidence at any later stage of the case, and no burden of proof or degree of
proof otherwise applicable shall be affected by that determination,
       (c) In any action subject to subdivision (b), a prevailing defendant on
a special motion to strike shall be entitkd to recover his or her attorney’s
fees and costs. If the court finds that a special motion to strike is frivolous
or is solely intended to cause unnecessary delay, the court shall award costs
and reasonable attorney’s fees to a plaintiff prevailing on t h e motion,
pursuant to Section 128.5.

       (d) This section shall not apply to any enforcement action brought in
the name ofthe people of the State of California by the Attorney General,
district attorney, or city attorney, acting as a public prosecutor.
       (e> As used in this section, “act i furtherance of a person’s right of
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petition or fiee speech under the United States or California Constitution in
connection with a public issue” includes: (1) any written or oral statement
or writing made before a legislative, executive> judicial proceeding, or
                                                   or
any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law; ( 3 ) any written or oral statement or writing
made in a place open to the public or a public forum in connection with an
issue of public interest; (4) or any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public interest.
      (0The special motion may be filed within 60 days of the service of
the complaint or, in the court’s discretion, at any later time upon tenns it
deems proper. The motion shall be noticed for hearing not more than 30
days after service unless the docket conditions of the court require a later
hearing.
       (g) All discovery proceedings in the action shall be stayed upon the
filing of a notice of motion made pursuant to this section. The stay of
discovery shall remain in effect until notice of entry of the order ruling on
the motion. The court, on noticed motion and for good cause shown, may
order that specified discovery be conducted notwithstanding this
subdivision.
       (h) For purposes of this section, “complaint” includes ‘‘cross-
complaint’’ and “petition,” “plaintiff’ includes “cross-complainant” and
“petitioner,” and LLdefendant’’includes Lccross-defendmt” “respondent.”
                                                           and

       (i) On or before January 1, 1998, the Judicial Council shall report to
the Legislature on the frequency and outcome of special motions made
pursuant to this section, and on any other matters pertinent to the purposes
of this section.

      (j> order granting or denying a special motion to strike shall be
         An
appealable under Section 904.I .
       (k) (1) Any party who files a special motion to strike pursuant to this
section, and any party who files an opposition to a special motion to strike,
shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or


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fax, a copy of the endorsed-filed caption page of the motion or opposition,
a copy of any related notice of appeal or petition for a writ, and a
conformed copy of any order issued pursuant to this section, inchding any
order granting or denying a special. motion to strike, discovery, or fees.
      (2) The Judicial Council shall maintain a public record of
information transmitted pursuant to this subdivision for at least three years,
and may store the infomation on microfilm or other appropriate electronic
media.




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California Code a Civil Procedtsre j 425.17:
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      (a) The Legislature finds and declares that there has been a
disturbing abuse of Section 425 - 16, the California Anti-SLAPP Law, which
has undermined the exercise of the constitutional rights of fieedom of
speech and petition for the redress of grievances, contrary to the purpose
and intent of Section 425,16. The Legidamre finds and declares that it is in
the public interest to encourage continued participation i matters of public
                                                           n
significance, and that this participation should not be chilled through abuse
of the judicia1 process or Section 425.16.

      (b) Section 425.16 does not apply to any action brought solely in the
public interest or on behalf of the general public if all of the following
conditions exist:
       (1) The plaintiff does not seek any relief greater than or different
from the relief sought for the general public or a class of which the plaintiff
is a member. A claim for attorney’s fees, costs, or penalties does not
constitute greater or different relief for purposes of this subdivision.

       ( 2 ) The action, if successful, would enforce an important right
affecting the public interest, and would confer a significant benefit,
whether pecuniary ar nonpecuniary, on the genera1 public or a large class
of persons.
      (3) Private enforcement is necessary and places a disproportionate
financial burden on the plaintiff in relation to the plaintiffs stake in the
matter.
       (c) Section 425.16 does not apply to any cause of action broubt
against a person primarily engaged in the business of selling or Ieasing
goods or services, including, but not limited to, insurance, securities, or
financial instruments, arising from m y statement or conduct by that person
if both o€the following conditions exist:
       (1) The statement or conduct consists of representations of fact about
that person’s or a business competitor’s business operations, goods, or
services, that is made for the purpose of obtaining approval for, promoting,
or securing sales or leases of, or commercial transactions in, the person’s
goods or services, or the statement or conduct was made in the course of
delivering the person’s goods or services.


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      ( 2 ) The intended audience is an actual or potential buyer or
customer, or a person likely to repeat the statement to, or otherwise
influence, an actual or potential buyer or customer, or the statement or
conduct arose out of or within the context of a regulatory approval process,
proceeding, or investigation, except where the statement or conduct was
made by a telephone corporation in the course of a proceeding before the
California Public Utilities Commission and is the subject of a lawsuit
brought by a competitor, notwithstanding that the conduct or statement
concerns an important public issue.
      (d) Subdivisions (b) and (c) do not appIy to any of the following:
       (1) Any person enumerated in subdivision (b) of Section 2 of Article
I of the California Constitution or Section I070 of the Evidence Code, or
any person engaged in the dissemination of ideas or expression in any book
or academic journal, while engaged in the gathering, receiving, or
processing of infornation for communication to the public.

       (2) Any action against any person or entity based upon the creation,
dissemination, exhibition, advertisement, or other similar promotion of any
dramatic, literary, musical, political, or artistic work, including, but not
Iirnited to, a motion picture or television program, or an article published in
a newspaper or magazine of general circuIation.
       (3) Any nonprofit organization that receives more than 50 percent of
its annual revenues Gorn federal, state, or local government grants, awards,
programs, or reimbursements for services rendered.
       (e) If any trial court denies a special motion to strike on the grounds
that the action or cause of action is exempt pursuant to this section, the
appeal provisions in subdivision (j) Section 425.16 and paragraph (1 3)
                                       of
of subdivision (a) of Section 904,l do not apply to that action or cause of
action.




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                               STATES W l l H S M P P hAWS AND   BILLS




-   States   w          Laus
                  ~ ~ a p p

-   States v/ Slapp B i l l




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            SLAPP LAWS lllrl OTHER STATES

Arkansas        Arkansas Code $9 16-43-501 - 16-63-508
De1aware        Delaware Code $6 8136 - 8138
Florida         Florida Statutes 5768.295
Georgia         Georgia Code 5 9-1 1-11.I
Guam            Guam Code hnotated Title 7, $8 17101 - 17109
Hawaii          Hawaii Revised Statutes, Chapter 634F
Indiana         Indiana Code 34-7-7
Louisiana       Louisiana Code of Civil Procedure Art. 971
Maine           74 Maine Revised Statutes 5 556
Maryland        Section 5-807 Annotated Code of Maryland
                (HE 930)
Massachusetts   Massachusetts Chapter 23 I , Section 59H
Minnesota       Minnesota Statutes Annotated Chap. 554
Missouri        Missouri RSMo Sec, 537.528
Nebraska        Nebraska Revised Statutes $9 25-2 1,241
                though 25-2 1,246
Nevada          Nevada Revised Statutes $8 41.635 - 41.670
New Mexico      New Mexico Statutes $8 38-2-9.1 and 9.2
New Y ork       New York Civil Rights Law 70-a and 76-a
Oklahoma        Oklahoma Statutes Annotated $ 1443 -1
Oregon          OregonRevised Statutes $8 30.142 - 30.146
Pennsylvania    27 Pennsylvania Statutes $ 7707,
                5s 8301 - 8305
Rhode Island    Rhode Island General Laws 9-33 and
                General Laws 45-24-67 “Appeals -- Participation
                in zoning hearing”
Tennessee       Tennessee Code Annotated § 9 4-2 1-100 1
                through 4-2 1-1004
Utah            Utah Code Annotated $5 78-58-101 - 78-58-105
Washington      Washington RCW 4.24.500 - 4.24.520
West Virginia   No current or past anti-$LAPP bills have been
                identified




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              States with Anti-SLAPP Bills
                 (Carwent or Previous)
Arizona           Current             SB 1498
Colorado          Current             HE 1192
                  Prior - 2001:       €€I3 01-1150
Connecticut       Current             None
                  Prior - 1991:       m 7374;
                  Prior - 1993:       HB 1026; SB 182; SB 248
Illinois          Czirrenf            SB 168 (2003)
                  Prior - 2002;       HB 4315
Kansas            Current             SI3 2x7
Michigan          Current             SB 1195 (2004)
                  Prior - 1997:       HI3 4709
                  Priw - 2002:        HI3 5592; HB 5593; HI3 5594;
                                      HJ3 5 5 9 5 ; HE3 5596; MB 5597
New Hampshire     Current             None
                  Prior - 1994:       SB 661
New Jersey        Current             None
                  Prior - 1998:       SB 745;
                  Prior - 1996:       AB 1545
Texas             Current             l3 329 (2005)
                                       a
                  Prior - 1997:       HI3 1319;
                  Prior - 1999:       €"IB2488;
                  PY~OP.- 20011       EIB 2723;
                  Prior - 2003:       HI3 2267
Virginia          Current             None
                  Prim - 1992-3       SB 424




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       First Step of the Anti-SLAPP Analysis:

      Is this a matter “arising from any act of that person in hfirrtherance of
the person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue”?
      Four ways to meet this test:
      (1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any ather official proceeding
authorized by law;
       (2) any written or oral statement or writing made in connection with
an issue under consideration or review by a legislative, executive, or
judicial body, or any other official proceeding authorized by law;
      (3) any written or oral statement or writing made in a place open to
the public or a public forum in connection with an issue of public
interest;

      (4) ox any other conduct in furtherance of the exercise of the
constitutional right o f petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.
       First two options are fairly straightforward; the third and fourth
options are most frequently invoked and also where the most questions
arise.




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      RCvero and Its Distlllatiorr of Cases Addressing
      Vublic InterestgyProng:

       In 2003, a California Court of Appeal organized the different cases
applying the “public interest” prong to establish categories of statements
that are in connection with “a pubiic issue or an issue of public interest.”
Aivero v. American Fedmatiora of State, Co~mty Municipal Emplqvees,
                                             &
AFL-CIO, 105 Cal. App. 4th 913 (2003)
      Rivem, who supervised eight janitors, was terminated from his job,
      after which the Union distributed a flyer making allegedly
      defamatory statements.

      In response to Rivera's complaint alleging libel and related torts, the
      Union filed an anti-SLAPP Motion.
      Court held that matter was not “a public issue or an issue of public
      interest,” after distilling California cases that have addressed that
      issue. Court explained:
          o None of these cases defines the precise boundaries of a public
            issue, but in each of these cases, the subject statements either
            concerned a person or entity in the public eye .‘., conduct that
             could directly affect a large number of people beyond the
             direct participants . .. or a topic of widespread, public interest
             ..,. Here, the Union’s statements concerned the supervision of
             a staff of eight custodians by Rivero, an individual who had
             previously received no public attention or media coverage.
             Moreover, the only individuals directly involved in and
             affected by the situation were Rivero and the eight custodians.
             Rivero’s supervision of those eight individuals is hardly a
             matter of public interest.

      Criticism is not a public issue just because it involves allegedly
      unlawful workplace activity. “[Ilf the Union were correct,
      discussion of nearly every workplace dispute would qualify as a
      matter of public interest.”




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   Cases that Have Followed Rivero:

                                           107 Cal. App. 4th 595 (2003)
   e   Court held that claims that “a product offers ‘The All-Natural Way
       to a Fuller, More Beautiful Bust!’” do not constitute speech on a
       matter of public interest.
         Court did not cite Rivero but its conclusion is consistent with
       Rivero’s conclusion.
   *   Court rejected argument that public interest prong met because
       herbal dietary supplements are matter of public interest, explaining:
       “If we were to accept Trimedica’s argument that we should examine
       the nature of the speech in terns of generalities instead of specifics,
       then nearly any claim could be sufficiently abstracted to fall within
       the anti-SLAPP statute.”
   * Intent of statute is “to encourage continued participation in matters
       of public significance” and this does not extend to advertising of
       particular commercial product.


ComnzonweaM Enerw v,Investor Data Exchnvage, 1 10 Cal. App. 4th 26
(2003)

   a   Court held that telemarketing pitch made on behalf of firm that sells
       information was not made in connection with public issue or issue of
       public interest.
   *   Court adopted Rivero’s ‘%wee general categories of cases fitting the
       prong.”
   a   Court explained: “Trimedica and Rivero effectively stand for the
       rejection of what might be called the synecdoche theory of public
       issue in the anb-SLAPP statute. The part is not synonymous with
       the greater whole.”




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Lhr Charms v. Int’I Brotherhood of E k e . Workers, Local 45,110 Cal. App.
4th 107 (2003)

       Court held that statements by Union followbg plaintiff’s termination
       from employment as assistant business manager for alleged financial
       mismanagement were not public issues or issues of public interest.
   0   After discussing fivero and fact that in most cases, issue is of
       widespread importance, Court distinguished cases that involve
       smaller, discrete portion of population.
       Court held: “[I]n order to satisfy the public issuelissue of public
       interest requirement of subdivisions (e)(3) and (4) of the anti-SLAPP
       statute, in cases where the issue is not of interest to the public at
       large, but rather to a limited, but definable portion of the public (a
       private group, organization, or community), the constitutionally
       protected activity must, at a minimum, occur in the context of an
       ongoing controversy, dispute or discussion, such that it warrants
       protection by a statute that embodies the public policy of
       encouraging participation in matters of public significance.”


                     110 CaI. App. 4th 1122 (2003)
   * Court held that allegations that defendant defamed plaintiff by
       stating that plaintiff stole valuable collector’s item from defendant
       were not public issues 01‘   issues of public interest.
       Court agreed with Rivero, explaining that defendant’s dispute with
       plaintiff was only a private dispute between private parties.
   a   Court explained:

          o The statute does not provide a definition for “an issue of
            public interest,” and it is doubthl an all-encompassing
            definition could be provided. However, the statute requires
            that there be some attributes of the issue which make it one of
            public, rather than merely private, interest. A few guiding
            principles may be derived h m decisional authorities. First,
            ”public interest” does not equate with mere curiosity....
            Second, a matter of public interest should be something of
              concern to a substantial number of people .... Thus, a matter of
              concern to the speaker and a relatively small, specific
              audience is not a matter of public interest.... Third, there
              should be some degree of closeness between the challenged
              statements and the asserted public interest...; the assertion of a
              broad and amorphous public interest is not sufficient.. ..
              Fourth, the focus of the speaker’s conduct should be the public
              interest rather than a mere effort ‘?o gather ammunition for
              another round of [private] controversy.. ...Finally, “those
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                                                        .




              charged with defamation cannot, by their own conduct, create
              their own defense by making the claimant a public figure,” ...
              A person cannot turn otherwise private information into a
              matter of public interest simply by communicating it to a large
              number of people ....
        Court rejected argument that “criminal activity is always a matter of
        public interest.”


&we## Y. Capitol One Bank, I 13 Cal. App. 4th 805 (2003)

   * Court held that credit card solicitations are not statements i
                                                                  n
        connection with public issue or issue of public interest.
   * Court reiterated Rivero’s three general categories of cases falling
        within the public interest prong.
   (0   “We find that to extend the protection of section 425.16 to credit
        card solicitations would subvert the intent of the Legislature in
        enacting section 425.16, which was to short-circuit suits filed for the
        purpose of deterring activists and other citizens from exercising their
        constitutional right to speak and petition the government for redress
        of grievances .”

        Because solicitations were designed solely for purpose o f
        commercial activity, they did not fall within ambit of anti-SLAPP
        statute.




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Wilbmks v. Wok,12 1 Cal. App. 4th $83 (2004)
  1    Court held that statements made by book author against viatical
       settlements brokerage and its owner were made in connection with
       issue of public interest.
                                            u
       Court adopted Rivero categories and D Charme requirement of
       ongoing public controversy, explaining:
          o The most commonly articulated definitions of “statements
            made in connection with a public issuC focus on whether { 1)
            the subject of the statement or activity precipitating the claim
            was a person or entity in the public eye; (2) the statement or
            activity precipitating the claim involved conduct that could
            affect large numbers of people beyond the direct participants;
            and (3) whether the statement or activity precipitating the
            claim involved a topic of widespread public interest.... As to
            the latter, it is not enough that the statement refers to a subject
            of widespread public interest; the statement must i some
                                                                  n
            mamm itself contribute to the public debate...,
  m    Court held statements regarding plaintiffs’ business practices did not
       meet this test because plaintiffs are not i the public eye and their
                                                 n
       business practices do not affect a large number of people, nor are
       they topics of widespread interest.

   8   Court held that statements about viatical industry, which were
       essentialIy consumer protection information, did meet this test. “In
       the context of information ostensibly provided to aid consumers
       choosing among brokers, the statements, therefme, were directly
       connected to an issue of public concern.”



Thornas v. Quintero, 126 Cal. App. 4 h 635 (ZOOS)
                                    t
       Court held that defendants’ actions in demonstrating and leafletting
       against plaintiff’s alleged practices as a landlord of multiple rental
       units, were public issues or issues of public interest.

       Court reiterated cases discussed above, but also discussed earlier
       cases that provided an expansive interpretation o f the “issue of


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public interest” prong. Court held that “in light of t h e statute’s
mandate that we construe the law broadly so as to ‘encourage
continued participation in matters of pubiic significance’ ...we
conclude that Quintem’s activities here were protected under section
425.16, subdivision (e)(3),” Key to Court’s decision was that
Quintero acted in conjunction with planned demonstrations, and that
contemporaneous efforts were being made to find solutions to
disputes.




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