BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
SB 515 S
Senator Kuehl B
As Amended May 1, 2003
Hearing Date: May 6, 2003 5
Code of Civil Procedure 1
GWW 5
SUBJECT
Anti-SLAPP (Strategic Lawsuit Against Public Participation) Law:
Restrictions on Use of Special Motion to Strike
DESCRIPTION
This bill would make the SLAPP motion (special motion to strike
a cause of action arising from any act of the defendant in
furtherance of that person's right of petition or free speech)
inapplicable to: a) public interests and class action lawsuits
when specified conditions are met; and b) lawsuits brought
against a business that arises from commercial statements or
conduct of that business, as specified.
This bill would also provide if the trial court denies a SLAPP
motion because of the new exemptions, the stay of discovery and
the right to an immediate appeal provisions of the anti-SLAPP
law do not apply.
The bill would also make legislative findings relating to the
disturbing abuse of the anti-SLAPP law, and stating that
continued participation in matters of public significance should
not be chilled through abuse of the judicial process or the
anti-SLAPP law.
BACKGROUND
Strategic Lawsuits Against Public Participation, or SLAPP suits,
(more)
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as they have become popularly termed, were first defined by
University of Denver Law School Professor George Pring and
University of Denver Sociology Professor Penelope Canan in their
seminal article, Strategic Lawsuits Against Public Participation
(1988) 35 Social Problems 506, as "civil lawsuits ... that are
aimed at preventing citizens from exercising their political
rights or punishing those who have done so."
While SLAPP suits "masquerade as ordinary lawsuits" such as
defamation and interference with prospective economic advantage,
they are generally meritless suits brought primarily to chill
the exercise of free speech or petition rights by the threat of
severe economic sanctions against the defendant, and not to
vindicate a legally cognizable right. (See, Pring and Canan,
SLAPPS: Getting Sued for Speaking Out (Temple University
Press, 1996).)
In 1992, Code of Civil Procedure Section 425.16 was enacted by
SB 1264 (Lockyer), Ch. 726, Stats. of 1992, to provide a
"special motion to strike" for use by defendants in SLAPP
lawsuits to obtain an early judicial ruling and termination of a
meritless claim arising from a person's exercise of the
constitutional rights of petition and free speech in connection
with a public issue. In passing the Anti-SLAPP law, the
Legislature found that "there has been a disturbing increase in
lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances . . . that it is in the public interest to
encourage continued participation in matters of public
significance, and that this participation should not be chilled
through abuse of the judicial process." (Emphasis added.)
In 1997, this preamble of the anti-SLAPP law was amended to
provide that the Section 425.16 shall be broadly construed. (SB
1296 (Lockyer), Ch. 271, Stats. of 1997.)
Since becoming law in 1993, there have been at least 100
reported appellate opinions construing Section 425.16, including
13 federal appellate decisions and 6 California Supreme Court
decisions, providing 33 pages of annotations to the West codes.
SB 515 (Kuehl)
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CHANGES TO EXISTING LAW
1. Existing law provides that 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 or California Constitution, as specified, is subject to
a special SLAPP motion to strike, unless the court determines
there is a probability that the plaintiff will prevail on the
claim. This SLAPP motion is not applicable to any enforcement
action brought in the name of the people of the State of
California by the Attorney General, district attorney, or city
attorney, acting as a public prosecutor. (Code of Civil
Procedure Section 425.16. All references are to this code
unless stated otherwise.)
This bill would further provide that the following claims or
actions are not subject to a special motion to strike:
Any action brought solely in the public interest or on
behalf of the general public when all three following
conditions are met:
a) 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. A claim
for attorney's fees, costs, or penalties would not
constitute greater or different relief.
b) The action, if successful, would enforce an important
right affecting the public interest, and would confer a
significant benefit on the general public or a large
class of persons.
c) Private enforcement is necessary and places a
disproportionate financial burden on the plaintiff in
relation to the plaintiff's stake in the matter.
Any cause of action brought against a person primarily
engaged in the business of selling or leasing goods or
services, including, but not limited to, insurance,
securities, or financial instruments, arising from any
statement or conduct of that person when both the following
conditions are met:
a) the statement or conduct consists of representations of
fact about that person's or a business competitor's
business operations, goods, or services, that is made for
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the purpose of obtaining approval for, promoting, or
securing sales or leases of, or commercial transactions
in, the person's goods or services, or the statement or
conduct was made in the course of delivering the good's
or services; and,
b) either i) is aimed at an actual or potential buyer, or
person likely to repeat the statement to, or otherwise
influence the buyer, or ii) arose out of or within the
context of a regulatory approval process, proceeding or
investigation, even if that statement or conduct concerns
an important public issue.
2. Existing law provides that an order denying a special motion to
strike is appealable to the court of appeal. (Section
425.16(j).) Existing law generally provides that the
perfecting of an appeal stays proceedings in the trial court
upon the judgment or order appealed from or upon the matters
embraced therein or affected thereby. (Section 916.)
Existing law also provides for a stay of discovery when a
SLAPP motion is filed, but allows the court to allow specified
discovery for good cause shown. (Section 425.16(g).)
This bill would make those stay and appeals provisions
inapplicable when a trial court denies a special motion to
strike on the grounds that a cause of action is exempt
pursuant to this bill.
3.The bill would make legislative findings and declarations
decrying the disturbing abuse of the anti-SLAPP law, which has
undermined the exercise of constitutional rights of freedom of
speech and petition for redress of grievances, and stating
that public participation in matters of public significance
should not be chilled through abuse of the judicial process or
the anti-SLAPP law.
COMMENT
1. Stated need to prevent Anti-SLAPP law from being abused as a
litigation weapon
The Consumer Attorneys of California (CAOC), sponsors of SB
515, assert that SB 515 is needed to stop corporate abuse of
the statute and to return Section 425.16 to its original
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purpose of protecting a citizen's rights of petition and free
speech from the chilling effect of expensive retaliatory
lawsuits brought against them for speaking out. They note
that in recent years, a growing number of large corporations
have invoked the anti-SLAPP statute to delay and discourage
litigation against them by filing meritless SLAPP motions,
using the statute as a litigation weapon.
As evidence of their claim, CAOC points to the raising number
of SLAPP motions filed in the superior courts of Sacramento,
Los Angeles, and San Francisco where total SLAPP motions in
those courts have jumped from 93 in the year 2000 to 200 in
the year 2002. CAOC argues that seminars such as those
promoted by the Practicing Law Institute, "Challenging a 17200
Claim as a 'SLAPP' Suit," are encouraging corporations to use
the SLAPP motions as new litigation weapon to slow down and
perhaps even get out of litigation.
Asserts the Consumer Justice Center, a simple pro bono public
interest case that should be completed in six months with
$5,000 in expenses becomes a costly and financially risky
ordeal when the anti-SLAPP law is misused. The filing of the
meritless SLAPP motion by the defendant, even if denied by the
court, is instantly appealable, which allows the defendant to
continue its unlawful practice for up to two years, the time
of appeal.
Proponents assert that the increased use by corporations of
meritless SLAPP motions subverts the purpose of the anti-SLAPP
law to protect citizens from expensive retaliatory lawsuits
brought to chill their valid exercise of constitutional
rights. In Wilcox v. Superior Court (1994) 27 Cal. App. 4th
809, 815-816, the court set forth a description of the
quintessential SLAPP suit:
The favored causes of action in SLAPP suits are defamation,
various business torts such as interference with
prospective economic advantage, nuisance and intentional
infliction of emotional distress. [Citations.] Plaintiffs
in these actions typically ask for damages which would be
ruinous to the defendants. [Citations.] SLAPP suits are
brought to obtain an economic advantage over the defendant,
not to vindicate a legally cognizable right of the
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plaintiff. [Citations.] . . . . [t]hey are generally
meritless suits brought by large private interests to deter
common citizens from exercising their political or legal
rights or to punish them for doing so. [Citation.]
Proponents argue that this chilling effect does not apply when
a large corporate defendant has massive resources that it may
rely upon in litigation, unlike the private citizen. In
support of SB 1651, last year's vetoed bill, University of
Denver Professor, Dr. Canan, co-author of the seminal research
on SLAPP suits, writes:
Anti-Slapp legislation is intended ? to provide citizens
who are sued for speaking out with a speedy and relatively
inexpensive defense mechanism against attacks on their
First Amendments rights by SLAPPs?.
How ironic and sad, then, that corporations in California
have now turned to using meritless anti-SLAPP motions as a
litigation weapon. This turns the original intent of one
of the country's most comprehensive and effective
anti-SLAPP laws on its head.
Corporate defendants have far greater resources to defend
themselves when sued, and as a group are far less likely -
or not likely at all - to be chilled in the exercise of
their First Amendment rights. Wealthy corporate
defendants, some with their own legal departments, simply
do not suffer the chilling effect on their rights when
faced with a lawsuit claiming, for example, false
advertising or fraud or illegal business practices, that
common citizens suffer when sued for speaking out.
2. Asserted SLAPP motion abuse stems from recent court cases
broadly interpreting anti-SLAPP law in response to recent
legislation
The increased use of the SLAPP motion appears to coincide with
the California Supreme Court's decision in Briggs v. Eden
Council for Hope and Opportunity (1999)
19 Cal.4th 1106, in which the court followed the Legislature's
direction and broadly construed the anti-SLAPP law to find
that any statement made in any legislative, judicial or other
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official proceeding was protected under the anti-SLAPP law,
even if the statement did not concern a public issue or issue
of public interest.
In 1997, this Legislature enacted SB 1296, which directed that
the anti-SLAPP statute shall be construed broadly to
effectuate its purposes. That measure sought to overturn
cases that were thought by its supporters to be unduly
limiting the reach of the anti-SLAPP law. One such
specifically identified case was Zhao v. Wong (1996) 48
Cal.App.4th 1114, which was abrogated by the Supreme Court in
Briggs. However, as Justice Baxter noted in his dissenting
opinion on this point: "[t]he anti-SLAPP statute is a
powerful tool to be broadly construed to promote '?the open
expression of ideas, opinions and the disclosure of
information.' (Citation omitted.) It is not, however,
generally available to the parties in any civil action, but is
instead expressly limited to lawsuits 'brought primarily to
chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances'
'in connection with a public issue' (Citations omitted.) The
majority's holding in this case belies that carefully
delineated legislative purpose and will authorize use of the
extraordinary anti-SLAPP remedy in a great number of cases to
which it was never intended to apply. " (Emphasis added.)
More recently, relying on Briggs and the Legislature's express
command that the anti-SLAPP law "shall be construed broadly,"
(Section 425.16, subd. (a).), the Supreme Court in Navellier
v. Sletten (2002) 29 Cal.4th 82, held that the plaintiff's
breach of contract claim was subject to a SLAPP motion.
Justice Brown, dissenting (with Justices Baxter and Chin
concurring), wrote: "?the majority appears willing to
consider any suit a SLAPP, based largely on when it was
filed?. The cure has become the disease-SLAPP motions are now
just the latest form of litigation abuse. " (Id., at p. 96.
Emphasis added.)
While this Committee might someday wish to engage in a
lengthier debate on whether the anti-SLAPP law has become a
rotting tree or a tree with a few rotten branches, or is just
fine as is, before us for consideration in SB 515 is a measure
that seeks to trim off a few bad branches as argued and
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identified by the CAOC.
3. SB 515's exemptions would overturn DuPont Merck case
Proponents assert that SB 515's exemptions are necessary
following an appellate court's expansion of the law to allow a
SLAPP motion in a class action lawsuit alleging that the
defendant's public false statements and conduct before a
regulatory agency and to the general public violated
California's Consumer Legal Remedies Act and Unfair Business
Practices Act. (DuPont Merck Pharmaceutical Co. v. Superior
Court (2000) 78 Cal. App. 4th 562.)
In ruling that the anti-SLAPP statute applied, the court
stated that the allegations relating to the defendant's FDA
activities were lobbying activities and fell squarely within
the "petitioning" prong of the statute. Additionally, the
court held the false advertising related allegation involved
free speech rights and also constituted a matter of public
concern because the complaint itself admitted that the
advertising involved 1.8 million users of the drug and
involved very serious conditions. (Since DuPont, the
California Supreme Court in Kasky v. Nike (2002) 27 Cal.4th
939, after noting that commercial speech is subject to limited
first amendment protection, said:
"statements may properly be categorized as commercial
'notwithstanding the fact that they contain discussions of
important public issues,' and that 'advertising which link a
product to a current public debate is not thereby entitled to
the constitutional protection afforded non-commercial speech,
?.'" (Id., at p. 957.)
Proponents argue that the Merck decision is a very dangerous
precedent for eroding the ability of citizens to bring private
lawsuits to correct public or private wrongs. SB 515 seeks to
"correct" DuPont by enacting the proposed exemptions to the
anti-SLAPP law.
4. SB 515 would make SLAPP motion inapplicable to cases against a
business where cause of action arises from the business's
commercial speech or activity
This bill would effectively overturn the DuPont case by making
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Section 425.16 inapplicable to any cause of action brought
against a person primarily engaged in the business of selling
or leasing goods or services, including, but not limited to,
insurance, securities, or financial instruments, arising from
any statement or conduct of that person when both the
following conditions are met:
a) the statement or conduct consists of representations of
fact about that person's or a business competitor's business
operations, goods, or services, that is made for the purpose
of obtaining approval for, promoting, or securing sales or
leases of, or commercial transactions in, the person's goods
or services, or the statement or conduct was made in the
course of delivering the good's or services; and,
b) either i) is aimed at an actual or potential buyer, or
person likely to repeat the statement to, or otherwise
influence the buyer, or ii) arose out of or within the
context of a regulatory approval process, proceeding or
investigation, even if that statement or conduct concerns an
important public issue.
CAOC argues that this restriction is necessary in light of the
abuses of the statute by corporate defendants who are
routinely bringing SLAPP motions in ordinary personal injury
and products liability cases to increase the time and expense
for plaintiff's attorneys to handle these cases. As an
example, CAOC points to Nutter v. Metabolife, (Superior Court
of San Diego County), in which the plaintiff had to argue
against SLAPP motions filed against the plaintiff's cause of
action for strict liability, breach of implied warranty,
negligence, and fraud. (However, a fifth motion against an
Unfair Competition claim was granted and was appealed.)
CAOC writes that this formulation is consistent with the
recommendation of the Senate Judiciary Committee analysis last
year on SB 1651 which urged the sponsors to look at the
content and context of the statement or conduct when crafting
an exemption, rather than enacting a wholesale exclusion of a
class of defendants which had been proposed in SB 1651.
Under this approach, lobbying activities to gain regulatory
authority to market a product, or speech intended to persuade
an audience to buy one product instead of another, can be
viewed in the context of its offering, just as a speech by a
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person against the building of a waste facility in the
neighborhood. The latter can clearly be seen to have been
made in the context of exercising the person's constitutional
right of speech and petition of government and is fully
protected speech, while the content and context of the former
activities are clearly more in furtherance of business
considerations and may be characterized as commercial speech
which does not enjoy full constitutional first amendment
protection. SB 515 indeed borrows from the Kasky v. Nike
formulation of commercial speech in the provision stating that
a statement or conduct consisting of representations of fact
about the person's business or its operations that arose out
of or within the context of a regulatory approval process,
proceeding or investigation, is deemed commercial speech and
activity, and outside the protections of the anti-SLAPP law,
even if that conduct or statement concerns an important public
issue. (Kasky v. Nike, supra.)
CAOC argues that this latter exemption is particularly
important in light of the fact that false and misleading
statements are often made by companies seeking approval of
their products in the regulatory process. Subjecting these
statements to the SLAPP process would, in CAOC words, engulf
every product defect in a morass of satellite SLAPP
litigation, adding years and potentially tens of thousands of
dollars to the cost.
a) Opposition to commercial speech exemption
CJAC argues that "SB 515 attempts to enact a wholesale
denial of the ability of an entire class of defendants to
protect themselves against a harassing lawsuit intended to
attack those defendants' constitutional rights of freedom
of speech and petition for redress of grievances?. Nothing
can justify the total denial of the Anti-SLAPP suit
protections to every statement by every entity regarding
its products, services, or business operations."
CJAC contends that SB 515's carte blanche denial of the
ability to protect one's free speech rights against
intentionally chilling litigation is an affront to the
courts and to the spirit of Section 425.16.
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The California Healthcare Institute (CHI) asserts that "the
essence of SB 515 is a wholesale denial of a special
procedural tool developed by the Legislature in the early
1990's to provide early, pre-discovery dismissals of
lawsuits premised on the defendant's exercise of some form
of protected speech - even commercial speech. CHI asserts
that SB 515 is extremely unfair in its denial of the
anti-SLAPP protections to businesses for their commercial
speech and argues that the measure "would likely fail a
constitutional challenge."
Opponents also point out that when Kasky was recently
argued before the United States Supreme Court, several
justices questioned the ease with which a bright line can
be drawn, so that protected speech is not chilled, under
the California Supreme Court's conclusion that Nike's
speech was commercial speech even when that speech touched
upon issues that was part of a public debate or was
intermingled with noncommercial speech.
CAOC responds that this measure is a more measured approach
than that considered by this Committee last year in SB
1651. That bill proposed a wholesale exclusion of
defendants who were product sellers from the anti-SLAPP
law. The failure of that proposal to distinguish between
conduct that may well fall within the paradigm of a SLAPP,
as opposed to simple commercial speech intended to further
the speaker's business interest, was also troubling.
Thus, the proposal was recrafted to take a different tack
and instead looks at the conduct and context of the
statement in order to determine if the underlying statement
should be protected by the anti-SLAPP law. This new
approach also avoids the problem of over-inclusiveness when
all speech and conduct by a class is excluded from
protection, regardless of its content or context. CAOC
contends that SB 515 would withstand a constitutional
challenge.
b) Constitutional considerations
As proposed Section 425.17(c ) would exempt lawsuits based
on defendant's acts that would be categorized as commercial
speech, the proposed exception to the anti-SLAPP law would
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not be unconstitutional. The provision does not prohibit
the commercial speech, and the bill does not punish it with
penal sanctions or the like. Nor does the bill regulate or
impinge that commercial speech. However, the bill would
provide that the anti-SLAPP special protections, intended
to weed out frivolous lawsuits that chill the valid
exercise of first amendment rights of speech or
participation in matters of public significance, are not
applicable to the specified type of commercial speech. As
stated in Virginia Pharmacy Board v. Virginia Consumer
Council (1975) 425 U.S. 748, at 772, fn. 24, commercial
speech is "less likely to be chilled by proper regulation."
Moreover, commercial speech to be protected by the First
Amendment must concern lawful activity and not be
misleading. (Central Hudson Gas & Elec. V. Public Service
Comm. (1980) 447 U.S. 557.) Thus, it is within the full
power of the Legislature to punish false speech, to
distinguish commercial speech from non-commercial speech,
and provide less protection, or even no protection, for
false or commercial speech in the procedural protections of
the anti-SLAPP statute.
Even if the United States Supreme Court were to toss out
Kasky's broad definition of commercial speech, that event
would not be necessarily fatal to SB 515. At its core, the
anti-SLAPP law is a procedural device crafted by the
Legislature to weed out certain frivolous lawsuits arising
out of the defendant's valid (and thus protected) first
amendment conduct. The classifications enacted by the
Legislature, such as an existing exemption for actions
brought by public prosecutors, may be justified when
supported by a rational basis. (See People v. Health
Laboratories (2001) 87 Cal.App.4th 442, 448,449, which
upheld public prosecutor exemption against equal protection
attack: " Section 425.16 is tangentially related to the
constitutional right of free speech, insofar as it was
enacted to prevent unscrupulous plaintiffs from filing
meritless lawsuits in order to stymie a person's exercise
of free speech or petition for redress of grievances ?.
Rather, section 425.16 is merely "a procedural screening
mechanism for determining whether a plaintiff can
demonstrate sufficient facts to establish a prima facie
case to permit the matter to go to a trier of fact."
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(Citations.) Emphasis added.)
In People v. Health Laboratories, a rational basis was all
that was necessary to sustain the exemption for actions
brought by public prosecutors. Even if the statute is
determined to be a content-based regulation of commercial
speech, the courts would apply an intermediate scrutiny
test and upheld the statute if there is a reasonable fit
between the government's purpose and the means chosen to
achieve it. (Central Hudson, supra.)
5. Making the anti-SLAPP motion inapplicable to certain class
actions and public interest lawsuits
SB 515 would make the SLAPP motion inapplicable to public
interest and class action lawsuits "brought solely in the
public interest or on behalf of the general public" when three
specified conditions are met. In general, the qualifying
language would clearly encompass claims brought under the
Unfair Competition Law (Business and Professions Code Section
17200 et. seq.), the Unfair Practices Act (Business and
Professions Code Section 17500 et. seq.), the Consumer Legal
Remedies Act (Civil Code Section 1750 et. seq.), as well as
any other public interest or class actions lawsuits where the
three specified conditions are met.
The three conditions have been carefully crafted so that not
all public interest or class actions would be automatically
exempt from the anti-SLAPP law. This is necessary, according
to CAOC, because there are some abusive uses of the unfair
competition law that should be subject to the SLAPP motion.
CAOC asserts that cases that are motivated by personal gain,
such as the recent Trevor Law Group unfair competition
actions, would not be covered by the exemption.
In specific support of this exemption, the California
Anti-SLAPP Project writes: "The reason this exemption is
needed and appropriate is as follows: 'There are certain
statutes that protect public health or consumers that allow
for enforcement by private attorneys general, without an
injured plaintiff. Conceptually, these are virtually
identical to when the D.A. or Attorney General enforces those
same statutes. (Citations omitted.) Since the statute already
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exempts actions filed by public prosecutors, it should provide
a parallel protection when people are acting only in the
public interest as private attorneys general, and are not
seeking any special relief for themselves."
Opponents assert that there is no reason to grant what is
effectively a presumption of validity to cases purportedly
brought on behalf of the general public or in the public
interest. While the public prosecutor exemption has been
justified on the grounds that public prosecutors may be
rationally presumed by the Legislature to act in the public
interest, opponents contend that such a presumption or
rationale cannot be applied to private litigants who have
shown much more regard to the collection of outlandish
attorneys' fees awards than a decent recovery for the class of
plaintiffs purportedly represented by the attorney. Opponents
point out that it has not been uncommon for plaintiffs
attorneys in these cases to collect millions in attorneys fees
while the plaintiff class gets a minor rebate or a coupon
towards the purchase of the next product.
6. Exemption from exemption for media and motion picture
defendants
Proposed subdivision (d) of newly added Section 425.17 would
exempt the news media and other media defendants (such as the
motion picture industry) from the bill when the underlying act
relates to news gathering and reporting to the public with
respect to the news media or to activities involving the
creation or dissemination of any works of a motion picture or
television studio. For claims arising from these activities,
the current SLAPP motion would remain available to these
defendants.
CAOC argues that the reason for these exemptions is simple.
"Newspapers and other media are in the business of
disseminating information to the public."
Opponents object to this selective exclusion from SB 515 and
argue that it is not justified.
7. Right to immediate appeal and automatic stay provisions of
existing law would not apply if trial court denies SLAPP
motion because of SB 515 exemption
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On page 3, lines 31 to 34, SB 515 provides: "If any trial
court denies a special motion to strike on the ground that the
cause of action is exempt pursuant to this section, the stay
and appeal provisions of subdivisions (g) and (j) of Section
425.16 do not apply."
As to nullifying the right to an immediate appeal in these
cases, CAOC asserts that current law is being used by
defendants to unreasonably delay a case from being heard on
the merits, thus adding litigation costs and making it more
cumbersome for plaintiffs to pursue legitimate claims. As
noted earlier, the Consumer Justice Center argued that a
simple pro bono public interest case that should be completed
in six months with $5,000 in expenses becomes a costly and
financially risky ordeal when the anti-SLAPP law is misused.
The filing of the meritless SLAPP motion by the defendant,
even if denied by the court, is instantly appealable, which
allows the defendant to continue its unlawful practice for up
to two years, the time of appeal.
SB 515 would make the right to an immediate appeal
inapplicable to SLAPP motions that are denied by the trial
court based upon one of the new grounds.
SB 515 would also make the provisions of subdivision (g) of
Section 425.16, relating to a stay of discovery upon the
filing of a SLAPP motion, inapplicable to SLAPP motions that
are denied by the trial upon one of the new grounds.
How this proposed provision is supposed to work is not clear.
The confusion arises because existing subdivision (g) dictates
an action when the SLAPP motion is filed and does not address
the circumstance when a motion is denied. In contrast, CCP
Section 916 provides for that the perfecting of an appeal
stays the proceedings in the trial court.
In SB 1651, CAOC had asserted that Section 916's mandatory
stay of proceedings is severely damaging to a plaintiff's
case, and that the mandatory stay creates an incentive for a
defendant to file a meritless special motion and then appeal a
denial, because that process ensures a delay of at least two
years in the court's hearing of the claim. In the meantime,
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costs are incurred, discovery is stalled and critical evidence
can be lost or destroyed. Moreover, the inability to conduct
discovery pending the appeal may prejudice the plaintiff in
his or her argument on appeal. Even if the plaintiff prevails
on appeal, and the motion is denied, the passage of time may
have irreparably damaged the plaintiff's case.
SHOULD THIS PROVISION BE CLARIFIED? SHOULD, INSTEAD, THE
PROVISIONS OF SECTION 916, PROVIDING FOR AUTOMATIC STAY UPON A
PERFECTED APPEAL, BE REFERENCED?
8. Other opposition arguments
Novartis Pharmaceuticals Corporation argues that SB 515 would
significantly the protections against frivolous litigation
which are now provided by the anti-SLAPP statute. It asserts
that it was able to obtain a quick dismissal in a purported
class action lawsuit that attacked Novartis' actions in taking
positions on scientific issues. Without the special motion,
Novartis writes that it would have had to spend years and
hundreds of thousands of dollars or more in attorneys fees to
defend the action.
The building industry coalition also opposes SB 515, concerned
that it would grant absolute protection to and encourage
unmeritorious NIMBY (Not in My Back Yard) litigation by
granting opponents of new development projects immunity from
the SLAPP motion. They note that such litigation often takes
the form of a CEQA (California Environmental Quality Act)
challenge. These opponents argue that California cannot
afford more NIMBY lawsuits.
The California Dental Association (CDA) also opposes, noting
that the SB 515 would eliminate the only legal tool the CDA
has been able to employ to avoid fully litigating Unfair
Competition nuisance lawsuits filed against them for their
public statements about dental filling materials.
The Association of California Insurance Companies writes that
"SB 515 is a transparent and unwarranted attempt to eviscerate
the anti-SLAPP procedure by expanding the exceptions so
broadly that the exceptions will inevitably swallow the rule."
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Support: California Anti-SLAPP Project
Opposition: California Dental Ass'n,; Civil Justice Association
of California; California Healthcare Institute;
California Association of Realtors; California
Building Industry Ass'n.; California Business
Properties Ass'n.; California Chamber of Commerce;
Consulting Engineers and Land Surveyors of California;
Home Ownership Advancement Foundation; Novartis;
Association of California Insurance Companies
HISTORY
Source: Consumer Attorneys of California
Related Pending Legislation: None Known
Prior Legislation:SB 789/SB 1651 (Kuehl) - Vetoed, 2002
AB 1675 (Asm. Judiciary Committee), Ch. 960,
Stats. of 1999
SB 1296 (Lockyer), Ch. 271, Stats. of 1997
SB 1264 (Lockyer), Ch. 726, Stats. of 1992
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