10 Tips On How To Use Anti-SLAPP Protection In Litigation

In my practice, I have found that California's Strategic Lawsuit Against Public Participation Statute, Section 425.16 of the Code of Civil Procedure (known as the "anti-SLAPP statute"), can be an effective tool for defendants faced with lawsuits of dubious merit, because it allows the court, on motion, to scrutinize the merits of a case at a very early stage, and eliminate unmeritorious actions. Here are some practical tips I have gleaned from experience (successful and not) on how to make (or oppose) such a motion.

1. Making the Motion: As with any motion, 2 questions are key: 1) Are there good reasons to make this motion; and 2) What can I reasonably hope to accomplish by making the motion?

   Defendant should not make the motion if the pleadings in the complaint are sufficient and it appears the plaintiff is likely to have sufficient evidence to support them, regardless of whether the conduct falls within anti-SLAPP protection. Just as they do not like frivolous lawsuits, judges do not like to be troubled with idle motions. However, there may be reasons to make the motion if the merits appear questionable, particularly where the burden on the merits rests with the opposing plaintiff. Here are some examples:

   If identifying the plaintiff's evidence at an early stage will assist in evaluating the case, the motion may well force plaintiff to reveal all such evidence by opposing declarations, to avoid losing the case. Making the motion may expose and highlight a case's relative weakness to the judge (and to the plaintiff) at an early stage. The standard for deciding the motion on the merits is far more favorable to a defendant than the standard on summary judgment (no triable issue of fact). 2. Making the Motion: Make the motion only if there is a decent argument that the challenged activity falls within the statute. Most anti-SLAPP motions are won and lost on this often-complicated issue, so any such motion should be armed with factual arguments and relevant case law to convince the judge that the case merits the statute's protection. The conduct attacked by the pleadings must be protected speech or petitioning activity, e.g., conduct in official proceedings, in connection with issues being considered by a governmental body, or regarding issues of public interest or in a public forum. This application is sometimes obvious, and sometimes not. While judges are required to construe the statute liberally, they will carefully scrutinize an anti-SLAPP...