Legal Advertisement: What is the so-called “catchall” provision of the anti-SLAPP law?
Defendants Stephen Brown (Brown) and Ignite Channel, Inc. (Ignite) solicited and obtained $180,000 in investments from plaintiff Bassel Ojjeh to produce a documentary film on the refugee crisis in Syria. Plaintiff later sued, claiming that no “significant” or “substantial” work had been performed on the film, and that defendants had breached their contractual obligations, defrauded him of his investments, and used his investments for purposes unrelated to the film. Defendants filed a special motion to strike the complaint or portions thereof under the anti-SLAPP law (Code Civ. Proc., § 425.16), claiming the complaint targeted their protected speech activity in producing the documentary.
The trial court denied the motion at the first stage of the anti-SLAPP analysis, finding the complaint does not arise from acts in furtherance of defendants’ exercise of their right of free speech. The California Court of Appeal concluded defendants have made a prima facie showing that the complaint targets conduct falling within the so-called “catchall” provision of the anti-SLAPP law. (§ 425.16, subd. (e)(4).)
Specifically, defendants’ solicitation of investments from plaintiff and their performance of allegedly unsatisfactory work on the uncompleted documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest.
Resolution of an anti-SLAPP motion involves two steps. First, the moving defendant must show that the challenged claim or claims arise from the defendant’s constitutionally protected free speech or petition rights. (Baral v. Schnitt (2016) 1 Cal.5th 376, 381–382, 396 (Baral).) A defendant need only make a prima facie showing at this stage. (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 112.)
Allegations of protected activity that are “ ‘merely incidental’ or ‘collateral’ ” or that “merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, at p. 394.) If the defendant makes the requisite showing at the first stage, the burden then shifts to the plaintiff to demonstrate the claim’s merit by establishing a probability of success. (Id. at p. 396.)
1. Anti-SLAPP Catchall Provision
Section 425.16, subdivision (e), describes four categories of conduct that constitute an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” Relevant here is the catchall provision, which defines protected activity to include “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.” (§ 425.16, subd. (e)(4).) This category extends the protection of the antiSLAPP statute beyond actual instances of free speech to all conduct in furtherance of the exercise of that right when undertaken in connection with a public issue or issue of public interest. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166 (Lieberman).)
The California Court of Appeal held there is no question that the Syrian refugee crisis is an issue of public interest. (See Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 (Tamkin) [issue of public interest is broadly defined as “ ‘any issue in which the public is interested’ ”]; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546–1547 [discussing common attributes of issues of public interest].)
In regards to conduct in furtherance of the exercise of free speech “in connection with” a public issue or issue of public interest. (§ 425.16, subd. (e)(4).) To make this determination, c court looks to the content of the speech and assess the functional relationship between the speech and the public conversation about the matter of public interest. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150.) “[T]he catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest. . . . ‘[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.’ ” (Id. at p. 150.) “[W]e examine whether a defendant—through public or private speech or conduct— participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151.) In conducting this examination, we consider “context—including audience, speaker, and purpose.” (Id. at p. 152.)
Accordingly, the trial court erred in denying defendants’ motion at the first stage of the anti-SLAPP analysis. The California Court of Appeal reversed and remanded the matter for further proceedings.
See Ojjeh v. Brown et al.
If you are faced with California’s Anti-SLAPP issues and dispicable defamation, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez! 209-596-4263.
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. Robert Rodriguez has practiced in the California Court of Appeal.