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On Behalf of | Aug 28, 2018 | Firm News


With the advent of the internet, blogging, social media, and widespread negative postings, the content of communications on the internet are of quite concern to many.

A brief analysis of California’s anti-SLAPP statue and the applicable cases interpreting it are set forth and deserve review.

Section 425.16 of the Code of Civil Procedure permits a party to move to “strike” the claims against that party, which arise from any act of the person in furtherance of the person’s right of petition or free speech under the United States or California Constitutions in connection with a public issue.  (Code Civ. Proc., §425.16(b) (l).) Section 425.16, subdivision (b) (l) provides:

“A cause of action arising from any act of that person in furtherance of the person’s right 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.” [Emphasis added]

The court analyzing an anti-SLAPP motion is faced with a two-pronged test:

Prong One

The moving party has the initial burden of establishing that the action being challenged qualifies for treatment under section 425 .16. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365.)  In this regard, the court must determine whether the moving party has met his or her burden of showing that the plaintiff’s lawsuit “arises from any act of [the defendant] in furtherance of the person’s constitutionally protected ‘right of petition or free speech ….”‘ (Code Civ. Proc., §425.16(b) (l); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819-821.)  The statute applies to any cause of action arising from a statement or writing made in, or in connection with an issue under consideration or review by, a legislative, executive, judicial or other official proceeding or body.  (Code Civ. Proc., §425.16(e); Briggs v. Eden Council jot Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.)

The trial court will look to the acts upon which the claim is based; “The principal thrust or gravamen of the claim determines whether section 425 .16 applies.., (Premier Medical Management Systems1  Inc. v. California Insurance Guarantee Association  (2006) 136 Cal.App.4th 464, 472.)  Thus, “a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected  activity under the label of one ’cause of action.'”  (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308).

Attorney’s Sued For Representing Clients

Indisputable facts could demonstrate that the first step in the anti-SLAPP analysis is easily established as to defendant attorneys.  Courts have held, without exception, by analogy , that attorneys who are sued for conduct related to the representation of a client in a legal matter may invoke the protection of the anti-SLAPP statute.  (See Jarrow Formulas v. Lamarche (2003) 31 Cal.4th 728.)  As reflected by the Jarrow opinion, an attorney may invoke the protections afforded by Section 425.16, even where the attorney is exercising a client’s right to petition.  (See also White v. Lieberman (2002) 103 Cal.App.4th 210; Zamos v. Stroud (2004) 32 Cal.4th 958; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-1420.)  In fact, citing the California Supreme Court’s decision in Briggs v. Eden Council for Hope & Opportunity, supra , 19 Cal.4th 1106, the White court held that ”’Contrary to plaintiff’s implied suggestion, the statute does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf (rather than, for example , on behalf of its clients . ..)’ (!d. at p. 1116.)” (White , supra , 103 Cal.App.4th at 221.)

The burden would then shift to plaintiff to establish a probability that they will prevail on their allegation claims against defendants.  A straightforward analysis of claims such as Abuse of Process, Violation of Business and Professions Code section 17200, and Intentional and Negligent Infliction of Emotional Distress; reveal that such claims against defendants would be difficult to prevail on as a matter of law.

Prong Two

The second step of the court’s analysis involves consideration of the merits of the Complaint against defendants. As indicated, the burden of proof shifts at this stage to plaintiff, who would bear the burden of establishing with admissible evidence a “probability that they [plaintiff] will prevail on their [their] claim[s].”  (Code Civ. Proc. , §425.16(b)(l) .) Consideration of the merits of the claim in anti-SLAPP proceedings also necessarily includes analysis of the affirmative defenses raised by the defendant.  (The Traditional Cat Association, Inc . v. Gilbreath (2004) 118 Cal.App.4th 392, 397; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048.) Indeed ,

“.. . on its face, the statute contemplates consideration of the substantive merits of the plaintiffs’  complaint, as well as all available defenses to it, including but not limited to constitutional defenses .  This broad approach is required not only by the language of the statute, but by policy reasons which gave rise to our anti-SLAPP statute.” (The Traditional Cat Association, Inc. v. Gilbreath, supra , 118 Cal.App.4th at 397.)

Stated otherwise, “If defendants have an affirmative defense to a cause of action, they may assert it in the special motion to strike.” (Premier Medical Management Systems, Inc . v. CIGA, supra, 136 Cal.App.4th at p . 477.)

The claims against defendant fall under two separate but related doctrines – the Noerr-Pennington doctrine and California Civil Code section 47(b), known as “the litigation privilege.”  Both of these defenses insulate all forms of representational activity from any form of derivative tort liability, and each provides a complete defense to the claims herein.

a. Litigation Privilege 

Civil Code section 47 provides, in relevant part:

“A privileged publication or broadcast is one made (a) in the proper discharge of an official duty. (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized  by  law….,,

The privilege applies to:

“any communication (1) made in judicial or quasi-judicial proceedings;

(2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”

(Silberg v. Anderson (1990) 50 Cal.3d 205, 212; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 23-24.)

The litigation privilege(s) primary purpose is to afford litigants “the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”  (Silberg, supra, at 213 ; see also Drum v. Bleau Fox & Associates  (2003) 107 Cal.App.4th  1009.)  The litigation privilege also applies to all causes of action other than malicious prosecution, including fraud, negligence,  misrepresentation and intentional infliction of emotional distress.  (Harris v_  King (1998) 60 Cal.App.4th 1185, 1188; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 640-641.)

Civil Code § 47, subdivision (b) (2) is also an absolute defense to a wide range of conduct. (See Drasin v. Jacoby & Meyers (1984) 150 Cal.App .3d 481 , 485 [filing of a complaint in an attempt to coerce a settlement is protected by privilege and is not an abuse of process]; O’Neil v. Cunningham (1981) 118 Cal.App.3d 466 [letter written during course of litigation , in violation of the Rules of Professional Conduct, did not deprive attorney of immunity under Civil Code section 47 making privileged any statements made in a judicial proceeding since the purpose of the letter was to persuade settlement]; Kachig, supra, 22 Cal.App.3d at 626 [even perjured and malicious testimony is privileged under section 47 of the Civil Code]; Home Ins. Co., supra, 96 Cal.App.4th at 17 [absolute litigation privilege for communications in the course of judicial or quasi-judicial proceedings attaches to statements made outside a courtroom and to statements made by counsel during settlement negotiations, even if it constitutes misrepresentation]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 920, 927 [communications do not fall outside the privilege simply because they are alleged to be fraudulent , perjurious , unethical or even illegal , even if misrepresentations of fact].)

The privilege even extends to noncommunicative acts that are necessarily related to communicative conduct, so long as the gravamen of action is communicative acts.  (See Rusheen v. Cohen (2006) 37 Cal.4th 1048 [noncommunicative acts of enforcing a default judgment including filing a writ of execution and levying on property is absolutely privileged).)  Moreover, any doubt as to whether the litigation privilege applies is resolved in favor of applying it. (Adams v. Superior Court ( 1992) 2 Cal.App.4th 521, 529; Silberg, supra , at 212; see also Morales v. Cooperative of American Physicians , Inc ., Mut. Protection Trust, 180 F.3d 1060 (9th Cir. 1999).)

Under Civil Code § 47 (b), a “publication” (or a communication) made in the course of a judicial proceeding is absolutely privileged. Accordingly, Civil Code § 47(b) would appear to preclude an abuse of process recovery that is based exclusively on a statement or publication taking place in the course of a judicial proceeding. (See Umansky v. Urquhart (1978) 84 Cal.App.3d 368, 372, 148 Cal.Rptr. 547; Thornton v Rhoden (1966) 245 Cal.App.2d 80, 99, 53 Cal.Rptr. 706. See, however, Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1167, 232 Cal.Rptr. 567(court observed it did not have to decide plaintiff’s broad contention that Civil Code §47 (b) should not apply to these cases, having ruled plaintiff’s alternative contention meritorious). The privilege is to be construed liberally. (Umansky, supra, at 372, 148 Cal.Rptr. 547.)

In fact, numerous cases have applied the anti-SLAPP statute in the context of fraudulent statements in court proceedings.  (See Navarro v. IHOP Properties, Inc . (2005) [”allegedly fraudulent statements within the context of negotiating the stipulated judgment” are within the scope of section 425.16.]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 [plaintiff sued attorney who had represented adversaries in three unlawful detainer actions based upon “knowingly making false representations and concealed … material facts” during negotiations with regard to a stipulated settlement. Court found that claims arose from the attorney’s “acts of negotiating a stipulated settlement of a pending unlawful detainer action” and were protected petitioning activity under the anti-SLAPP statute); GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901; Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc . (2008) 164 Cal.App.4th 1108 [entering into a settlement agreement is protected activity].)

Further, pre-litigation communications that are related to anticipated or potential litigation are immunized as well.   Laffer v. Levinson, Miller, Jacobs & Phillips, (1997) 34 Cal. App. 4th 117, 121; See also Civil Code §§  47 (a) – (d), instances of absolute and conditional privilege. If abused, the privilege is gone.

The case law makes abundantly clear that purportedly false statements made by a defendants during legal proceedings are nonetheless fully protected under Civil Code section 47(b).  The claims advanced in a Complaint are thereby subject to an anti-SLAPP motion along with all applicable fees, costs and penalties pursuant to Code of Civil Procedure section 425.16(c) (1).

 Applicability to the Internet

Code Civ. Proc., §425.16(b) s totally applicable to internet communications as:

“…any act of that person in furtherance of the person’s right 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.” [Emphasis added]

“The anti-SLAPP statute was enacted to allow for early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.” Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.2001).  Communications on the internet are protected speech.

Reasonable Probability of Prevailing

“`Reasonable probability’ … requires only a `minimum level of legal sufficiency and triability.'” Mindys Cosmetics, 611 F.3d at 598 (quoting Linder v. Thrifty Oil Co., 23 Cal.4th 429, 97 Cal.Rptr.2d 179, 2 P.3d 27, 33 n. 5 (2000)). A plaintiff must “state and substantiate a legally sufficient claim,” id. at 598-99, based on “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based,” Cal. Civ. Proc. Code §425.16(b)(2). “`Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'” Mindys Cosmetics, 611 F.3d at 599 (quoting Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733, 739 (2002)). “[T]he required probability that [the plaintiffs] will prevail need not be high.” Hilton v. Hallmark Cards, 599 F.3d 894, 908 (9th Cir. 2010).

Does this mean that defamatory and malicious statements on the internet are absolutely privileged and a lawsuit is absolutely barred?  The answer, given above, is no.  The standard is not high, however, evidence must credited to achieve a motion denial.  Id.

Public Interest Exception

Recognizing in 2003 that the statute may have gone too far, however, the legislature added an exception, so the statute now “does not apply to any action brought solely in the public interest or on behalf of the general public[.]” Cal. Civ. Proc. Code § 425.17(b). This has come to be known as the statute’s “public-interest exception.” See, e.g., Blanchard v. DIRECTV, Inc., 123 Cal. App. 4th 903, 914, 20 Cal.Rptr.3d 385 (2004). {Emphasis added]

A litigant defending against a motion to strike by invoking the public interest exception must make the following showing:

(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….

(2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general 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 plaintiff’s stake in the matter.

Extortion and Criminal Conduct Not Privileged or Protected

In 2006, the California Supreme Court held that the Anti-SLAPP statute did not protect an attorney demand letter that amounted to extortion as a matter of law.  Flatley v Mauro (2006) 39 Cal.4th 299.  In this regard, see  18 U.S.C. § 1961 (RICO).  The important part to remember is that no privilege attached to criminal conduct.  See also the Communications and Decency Act, 47 US Code § 230.

See  Zhang et al. v, Jenevein (2019)  (2nd DCA, Div. 7) B280047.  In this matter, Defendant recorded confidential communications in violation of Penal Code sections 632 and 637.2.2.  Defendant filed a special motion to strike pursuant to 425.16 of the Cal. Code of Civil Procedure.  The courts in this matter, however, determined that contractual arbitration is not a judicial proceeding.  The Appeal Court did not address the criminal conduct and the issue of it not being privileged.  Affirmed.

Complicated law?  To say the least, yes.  If you are faced with internet harassment and defamation, you need a highly skilled attorney to help you resolve the issue. The Public Interest Exception may apply.

Robert Rodriguez, Attorney at Law

Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts.  Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.