California law provides particularly notable First Amendment protections. To the extent that a lawsuit may infringe on an individuals right of petition or free speech, the California Anti-SLAPP (strategic lawsuits against public participation) statute provides an immediate and effective means for the individual to seek dismissal of the lawsuit. As California Code of Civil Procedure § 425.16(b)(1) provides:
A cause of action against a person arising from any act of that person
in furtherance of the person’s right of petition or free speech under the
United States Constitution or the 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.
Lawsuits to which the anti-SLAPP statute may apply include, but are not limited to, defamation, slander, libel and malicious prosecution.
However, the anti-SLAPP statute is not absolute. Rather, it only applies to lawsuits arising from the following acts, which are considered to be acts in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue for purposes of CCP § 415.16:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, 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; or
(4) 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.
To prevail on a special motion to strike, the defendant must demonstrate that the plaintiff’s lawsuit arises from one of the foregoing acts. C.C.P. § 425.16(b). The defendant is not obligated to demonstrate that the plaintiffs subjective intent is to chill the exercise of constitutional speech or petition rights. See Navellier v. Sletten, 29 Cal. 4th 82, 89 (2002). Nor must the defendant show that the plaintiffs lawsuit had the actual effect of chilling free speech or petition rights. Id.
Once the defendant has made such a showing, the burden shifts to the plaintiff to establish a probability that he or she will prevail on his or her claims. Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 60 (2002). If the plaintiff cannot satisfy this burden, the anti-SLAPP motion to strike will be granted in favor of the defendant.
To the extent that a defendant prevails on his or her special motion to strike, the defendant is entitled to attorneys fees and costs pursuant to CCP § 425.16(c)(1). This is a significant benefit to a defendant because it allows a defendant to potentially recover all attorneys fees spent in defending against the lawsuit.
A special motion to strike may be filed within sixty (60) days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. CCP § 425.16(f). Therefore, a defendant should retain experienced counsel upon being served with a lawsuit to which the anti-SLAPP statute may apply.
To the extent that the defendants anti-SLAPP motion to strike is granted, the lawsuit is dismissed, with prejudice, against the Defendant.
The attorneys at ARI LAW, P.C. have experience both filing and defending against anti-SLAPP motions to strike.
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