I see that I haven’t posted for about 10 days. But I’m returning. I have been working on an opposition to an anti-SLAPP motion, and also detailed discovery meet and confer.

The anti-SLAPP motion is at Cal. Code Civ. Proc. section 425.16. I have not been involved in one of these motions previously. This is off topic for my blogs, but I just have to say that this statute has real problems, the Legislature and the courts have recognized that the statute is ripe for improper use and abuse, and, really, it should be amended or removed entirely.

In theory the purpose of the statute sounds fine, apparently it was believed that there were too many lawsuits being brought against defendants who were simply exercising their protected first amendment rights, so the Legislature enacted a statute allowing a defendant to file an anti-SLAPP motion within the first 60 days after being served with a complaint or a cross-complaint, requesting the court to dismiss the action, or certain of the causes of action, with prejudice, when those causes of action complained of are actions taken by the cross-defendant or defendant which were merely an exercise of his or her first amendment rights. I can agree with that in theory.

The problem is that any cross-defendant or defendant can file such a motion, for example when the cross-defendant/defendant first files a complaint as a plaintiff, and then the defendant in that lawsuit files a cross-complaint or a separate lawsuit against the original plaintiff. In that circumstance the original plaintiff, who is now a cross-defendant or a defendant in a new lawsuit claims that the cross-complaint or the new lawsuit was brought simply because the original plaintiff who is now the cross-defendant/defendant filed his or her original complaint, which is a protected first amendment action.

If the now cross-defendant/defendant who brings the motion can establish a prima facie showing of his or her protected activity, the burden shifts to the now cross-complainant/plaintiff to show (1) that the cross-complaint or new lawsuit wasn’t brought because of the protected activity (the filing of the original lawsuit) or (2) that the cross-complainant/plaintiff has sufficient evidence to prevail on the cross-complaint or law lawsuit. Just describing this scenario is ridiculous.

The hearing is supposed to be within 30 days after the motion is filed, although it can be extended, which means that the cross-complainant/plaintiff most likely has very, very little time to produce sufficient admissible evidence that the lawsuit isn’t about protected activity, and that he or she already has sufficient evidence that he or she will prevail in the case. This puts a very high burden on the cross-complainant/plaintiff in a very short period of time before any discovery has been propounded or completed, and the cross-complaint or complaint is subject to dismissal with prejudice.

As you might guess, this creates a situation where a cross-defendant/defendant can abuse the statute and bring an anti-SLAPP motion where it really wasn’t intended to apply, but with the hope that the cross-defendant/defendant will get lucky with the judge’s discretionary perspective, or that the cross-complainant/plaintiff doesn’t have sufficient evidence yet or isn’t allowed sufficient time to put the evidence and legal authorities together. On a motion for summary judgment the opposing party gets 75-80 days, or more, to conduct discovery and prepare an opposition. On an anti-SLAPP motion the opposing party gets perhaps 17-18 days.

California Code of Civil Procedure section 425.16 really should be changed.

Onward. Enjoy.

Dave Tate, Esq., San Francisco and California, http://californiaestatetrust.com, http://auditcommitteeupdate.com