BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1158 A
Assembly Member Lieber B
As Amended April 25, 2005
Hearing Date: July 12, 2005 1
Code of Civil Procedure 1
GWW 5
8
SUBJECT
Anti-SLAPP (Strategic Lawsuit Against Public Participation)
Law:
-Anti-SLAPP motions and SLAPPback lawsuits-
DESCRIPTION
As amended by author's amendments to be offered in
committee, this bill would enact the following rules with
respect to anti-SLAPP motions and SLAPPback lawsuits
(defined as a cause of action for malicious prosecution or
abuse of process arising from the filing of a prior cause
of action that was dismissed as a SLAPP lawsuit pursuant to
an anti-SLAPP motion).
For an anti-SLAPP motion (Code of Civil Proceeding Section
425.16 special motion to strike):
* The court's denial of an anti-SLAPP motion would be
inadmissible for any purpose in any subsequent action and
would not affect any burden of proof or degree of proof
otherwise applicable. (Under current law, these rules
are applied to bar any adverse collateral effect of that
determination at any later stage of the case.)
* The motion would be scheduled by the court clerk for
hearing within 30 days after the service of the motion
unless the docket conditions require a later hearing.
(Current law requires that the hearing be noticed, but
not necessarily scheduled.)
(more)
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* On appeal, a party's timely evidentiary objections in the
trial court would not be waived, provided the party
requested a ruling on them at the hearing, if there is a
hearing. (This provision is being added to the
anti-SLAPP law.)
This bill would also enact Code of Civil Procedure (CCP)
Section 425.18 to govern SLAPPback lawsuits. While it
would permit an anti-SLAPP motion to be filed in a
SLAPPback action, the bill would establish the following:
* Legislative findings that a SLAPPback action is
distinguishable in character and origin from the ordinary
malicious prosecution action, and that a SLAPPback should
be treated differently from the ordinary malicious
prosecution action because a SLAPPback is consistent with
the Legislature's intent to protect the valid exercise of
the constitutional rights of free speech and petition by
its deterrent effect on SLAPP litigation and by its
restoration of public confidence in participatory
democracy.
* There would be no right to mandatory attorney's fees for
a prevailing defendant filing an anti-SLAPP motion in a
SLAPPback action. (Proposed Section 425.18(c).)
* There would be no automatic right to appeal the denial of
the motion, but an expedited writ process is provided.
(Proposed Section 425.18(c).)
* There would be no limitation on discovery upon the filing
of an anti-SLAPP motion. Further, a party opposing the
motion to strike a SLAPPback may file an ex parte
application for a continuance to obtain necessary
discovery, which shall be granted if it appears to the
court that facts essential to justify opposition to the
motion may exist. (Proposed Section 425.18(c) and (e).)
* Defendants would have 120 days after service of the
SLAPPback action to file the motion, (instead of 60-days)
and for any delayed filing beyond six-months after
service, the court must find that the delayed filing was
an extraordinary case and circumstance due to no fault of
the defendant. (Proposed Section 425.18(d).)
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* The filing of a frivolous anti-SLAPP motion in a
SLAPPback action would be sanctioned by an award of
reasonable attorney's fees to the plaintiff. (Proposed
Section 425.18(f) is taken from the existing anti-SLAPP
law.)
* A special motion to strike may not be filed in a
SLAPPback action by a person whose indisputably illegal
statement or indisputably illegal conduct was the basis
of the prior action that was dismissed in that prior
proceeding pursuant to a special motion to strike.
(Proposed Section 425.18(g).)
* The SLAPPback provisions would not apply to any SLAPPback
action filed by a public entity. (Proposed Section
425.18(1).)
* The bill would make specified findings to abrogate or
overrule specified court decisions. (Proposed Section 3
of the bill.)
The bill would take effect immediately as an urgency
measure.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
Strategic Lawsuits Against Public Participation (SLAPP)
suits were first identified 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
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right. (Pring and Canan, SLAPPS: Getting Sued for Speaking
Out, (Temple University Press, 1996).)
In 1992, SB 1264 (Lockyer), Ch. 726, Stats. of 1992,
enacted CCP Section 425.16 to provide a "special motion to
strike" for use by defendants in SLAPP lawsuits to obtain
an early judicial dismissal of a meritless claim arising
from the person's valid exercise of his or her
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." (Italics added.)
In 1997, this preamble of the anti-SLAPP law was amended to
require that Section 425.16 be broadly construed. (SB 1296
(Lockyer), Ch. 271, Stats. of 1997.)
In 2003, responding to concerns that the statute was being
interpreted too broadly and to concerns about disturbing
abuses of the law which undermined its intent, the
Legislature in SB 515 (Kuehl), Ch. 338, Stats. 2003,
provided that certain actions were not subject to the
special motion to strike, such as specified actions brought
solely in the public interest or on behalf of the general
public and certain actions based on the defendant's
commercial speech or conduct.
Since becoming law in 1993, there have been at least 174
reported appellate opinions construing Section 425.16,
including 23 federal appellate decisions and 10 California
Supreme Court decisions, providing 94 pages of annotations
to the West codes, an addition of 61 pages in the last
three years alone. While the Supreme Court's anti-SLAPP
jurisprudence has, in its words, "scrupulously honored" the
Legislature's intent "as exhibited in the plain meaning of
the actual words of the law," (Jarrow Formulas, Inc. v. La
Marche (2003) 31. Cal. 4th 728), three members of the
Supreme Court have also opined, "?the majority appears
willing to consider any suit a SLAPP, based largely on when
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it was filed?. The cure has become the disease-SLAPP
motions are now just the latest form of litigation abuse."
(Justice Brown, dissenting (with Justices Baxter and Chin
concurring), Navellier v. Sletten (2002) 29 Cal.4th 82,
96.)
CHANGES TO EXISTING LAW
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.)
Existing law provides that certain actions are not subject
to a special motion to strike. They are: a) an action
brought solely in the public interest or on behalf of the
general public when specified conditions are met; and b) a
cause of action brought against a person primarily engaged
in the business of selling or leasing goods or services,
arising from any statement or conduct of a commercial
nature or purpose. (Section 425.17.)
This bill would enact specified provisions with respect to
anti-SLAPP motions and SLAPPback lawsuits, as detailed
above in DESCRIPTION.
COMMENT
1. Stated need to help SLAPP victims who wish to vindicate
their rights
The sponsor, the California Anti-SLAPP Project (CASP),
and proponents assert that victims of SLAPP lawsuits
suffer great damages as a result of being SLAPPed, and
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that the costs and attorneys' fees recoverable under the
anti-SLAPP law are only a small part of the overall
damages suffered by a SLAPP victim. CASP points out that
some victim's lives have been literally destroyed by
having to defend against a SLAPP. Some have lost or had
to mortgage their homes to pay the upfront defense costs,
and many have suffered severe emotional distress, adverse
health consequences, and strained family relationships
caused by SLAPP-related stress. Writes CASP:
"Frequently, much more significant are damages for
emotional distress and punitive damages, arising from
violations of the defendant's constitutional rights.
Attorneys' fees and costs will not compensate."
This bill will enhance the ability of SLAPP victims to
recover damages for being SLAPPed in two major ways.
First, it would narrowly abrogate a part of the Supreme
Court decision in Wilson v. Parker, Covert & Childester,
(2002) 28 Cal.4th 811, in which the Court narrowly
construed legislative intent and declined to bar the
denial of an anti-SLAPP motion from having an adverse
effect in a later action. That ruling effectively bars
many SLAPP victims from filing a SLAPPback action even
though that prior denial of the motion was overturned on
appeal. The proposal limited abrogation would allow
those SLAPP victims to file a SLAPPback claim. (See
Comment 3.) A second major provision would enact new
Section 425.18 to govern SLAPPback actions to
specifically ameliorate some of the potential harshness
of the anti-SLAPP law if applied to a SLAPPback action.
(See Comments 2, 4, and 5.)
2. Provisions to protect SLAPPback lawsuit from harsh
application of anti-SLAPP law
While SLAPP victims may now file a malicious prosecution
to recover their damages, CASP asserts that the available
use of the anti-SLAPP motion in a SLAPPback lawsuit
serves as a real chill on the willingness of many SLAPP
victims to proceed. If the anti-SLAPP motion succeeds,
the SLAPP victim bringing the SLAPPback lawsuit would be
revictimized by having to pay the prevailing defendant's
attorney's fees. In some cases, the fees can be $100,000
to $200,000 or more; this threat of a huge attorney's fee
assessment is a major deterrent to those who might
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otherwise wish to vindicate their rights through a
SLAPPback lawsuit.
This revised proposal would eliminate that threat of
attorney's fees from a successful anti-SLAPP motion in a
SLAPPback action by making the mandatory attorney's fee
provision inapplicable to SLAPPback cases. This
provision would also eliminate another risk in the
anti-SLAPP law that provides for a mandatory fees award
even if the SLAPPer dismisses the action after the SLAPP
victim files a motion to strike. (Pfeiffer Venice
Properties v. Bernard (2002) 101 Cal.App.4th 211.) Thus,
if a SLAPP victim files a SLAPPback and is served with a
special motion to strike, the SLAPPback filer may dismiss
without fear of a mandatory attorney's fees assessment.
This would give the SLAPP victim/SLAPPback filer and his
or her counsel an opportunity to consider whether to drop
the case without having to pay attorney's fees or proceed
with the SLAPPback litigation and face a potential large
fees award if the anti-SLAPP motion prevails. As noted
above, this option is not now available under the
anti-SLAPP law to a SLAPP filer.
Other provisions of the anti-SLAPP law are also mitigated
or eliminated in a SLAPPback lawsuit so that the SLAPP
victim could more easily pursue his or her case without
undue encumbrance from the anti-SLAPP law. For example,
unlike the anti-SLAPP law, a SLAPPback defendant losing a
special motion to strike would not have right to
immediate appeal, and would instead be able to file a
peremptory writ which may be granted at the appellate
court's discretion. Proponents argue that permitting an
immediate appeal in a SLAPPback case will usually enable
the well-heeled SLAPP plaintiff/now SLAPPback defendant
to again punish the SLAPP victim, economically and
emotionally, through extended appeals of a meritless
motion. As another example, the bar of discovery in
anti-SLAPP motions would not apply in SLAPPback claims,
thereby allowing the SLAPPback plaintiff the opportunity
to obtain evidence to support his or her claim and to
defeat an anti-SLAPP motion. In fact, another provision
would expressly allow a SLAPPback plaintiff to obtain
additional time for discovery pending the anti-SLAPP
motion if it appears to the court that facts essential to
the opposition to the motion may exist. This is
appropriate, argue proponents, so that the anti-SLAPP law
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does not unfairly deprive the SLAPP victim of a valid
claim just because he or she has not had sufficient time
to obtain evidence of the defendant's malice, a key
element for a malicious prosecution claim.
Further, the proposed SLAPPback provisions limit the
delayed filing of an anti-SLAPP motion that could
unfairly surprise a SLAPPback plaintiff by limiting the
court's discretion to allow a delayed filing more than
six months after the filing of the complaint to
extraordinary cases and circumstances where the defendant
shows that the delay was not the defendant's fault and
the court makes a written finding to that effect. Under
the existing law, SLAPPback attorneys assert that they
have been served with an anti-SLAPP motion months after
the deadline and there appears to be no reason for the
extraordinary delay except to allow the defendant to run
up attorneys' fees.
To prevent the filing of a anti-SLAPP motion that is
frivolous or solely intended to cause delay, the bill
would require payment of the prevailing SLAPPback
plaintiff's attorneys' fees and costs upon that motion's
denial. This provision is taken from the existing
anti-SLAPP law.
Further, the bill would bar a special motion to strike
from being filed in a SLAPPback action by a person whose
indisputably illegal statement or indisputably illegal
conduct was the basis of the prior action that was
dismissed in that prior proceeding pursuant to a special
motion to strike. (See Comment 4, below.) These and two
other key ameliorative provisions, the legislative
findings regarding SLAPPback actions (proposed Section
3(a) of the bill) and the narrow abrogation of Wilson's
reading of legislative intent, would provide significant
protections to SLAPP victims who decide to file a
SLAPPback lawsuit. (See Comments 3 and 5, below.)
3. Narrow abrogation of Wilson's interpretation of
legislative intent
CCP Section 425.16(b)(3) [henceforth "(b)(3)"] currently
provides that "[i]f the court determines that the
plaintiff has established a probability that he or she
will prevail on the claim, neither that determination nor
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the fact of that determination shall be admissible in
evidence in any later stage of the case, and no burden of
proof or degree of proof otherwise applicable shall be
affected by that determination."
In Wilson v. Parker, Covert & Childester, (2002) 28
Cal.4th 811, the Court was asked to construe (b)(3) to
bar a denial of an anti-SLAPP motion to strike from
precluding the SLAPP victim from bringing a SLAPPback
lawsuit even though the victim eventually prevailed on
appeal on that motion or prevailed in a later trial. The
Court declined and instead ruled that a denial of the
anti-SLAAP motion (on the ground that the plaintiffs had
established the requisite probability of success) gives a
SLAPP filer a probable cause defense in any subsequent
malicious prosecution SLAPPback claim. Since one of the
critical elements of an action for malicious prosecution
is the absence of probable cause for bringing the prior
action (Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal. 3d 863, 874), that determination is fatal to many
SLAPP victims who nonetheless prevailed on appeal or at
trial, but cannot file a SLAPPback action to recover
compensatory damages because of that Wilson ruling.
While the Court may have been correct in its strict,
literal interpretation of the statute, the Court in this
instance arguably failed to heed the Legislature's
direction to broadly construe the statute to further the
legislative intent that the anti-SLAPP procedures be
employed to quickly end abusive litigation against
protected speech and activity. The clear and
indisputable intent of (b)(3) is to not penalize the
SLAPP victim for filing a special motion to end the case
early, before any real discovery had been done and where
the court does not weigh the evidence but simply looks to
see if the plaintiff can make a showing of prima facie
minimal case. The Court's view at page 826 that the
minor effect of its ruling to force a SLAPP victim to
choose between filing an anti-SLAPP at the risk of
jeopardizing a subsequent malicious prosecution claim or
foregoing that special motion to preserve the claim, does
not comport with the clear intent of (b)(3) to not
penalize the SLAPP victim for filing and losing an
anti-SLAPP motion.
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This proposal would correct that situation by amending
(b)(3) to provide that the denial of the motion has no
impact at any later stage of the case or in any
subsequent action. Legislative intent language would
reinforce the fineness of this provision by specifying
that in amending (b)(3) in AB 1158, the Legislature is
abrogating that part of Wilson at pages 825 and 826
discussing the legislative intent of (b)(3) to the extent
it is inconsistent with (b)(3) as amended by AB 1158.
This approach avoids the problems posed by the original
proposal in AB 1158 in Section 425.16(b)(4) to overturn
Wilson and Roberts in their entirety, which would have
affected the law of summary judgment as well as malicious
prosecution. This approach also removes CDC's
opposition, which was strongly opposed to any change in
the Wilson-Roberts line of cases. This also addresses
CJAC's specific objection to the (b)(4) provision, but is
not likely to remove their general opposition to AB 1158.
4. Indisputably illegal conduct may not be the basis for an
anti-SLAPP motion in a SLAPPback case
In Bill Johnson's Restaurants, Inc. v. National Labor
Relations Board, 461 U.S. 731 (1983), the court held that
"baseless litigation is not immunized by the First
Amendment right to petition."
The proposed revision adopts this principle in the
SLAPPback context and provides that "a special motion to
strike may not be filed in a SLAPPback action by a person
whose indisputably illegal statement or indisputably
illegal conduct was the basis of the prior action that
was dismissed in that prior proceeding pursuant to a
special motion to strike."
Thus, where a person whose prior SLAPP lawsuit based on
"indisputably illegal conduct" was thrown out on a
special motion and the SLAPP victim files a malicious
prosecution action, that bad actor cannot use the
anti-SLAPP law to defend against the lawsuit or to vex
and harass the SLAPP victim. However, if there is a
genuine issue of material fact that turns on the
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credibility of witness or on proper inferences to be
drawn from indisputable facts, then the matter is not
indisputable.
This concept in part originates from Attorney General
Bill Lockyer's amicus curiae brief in Flatley v. Mauro,
pending before the California Supreme Court (S128429,
review granted Dec. 15, 2004), in which the Court is
being asked to consider whether a defendant engaged in
illegal and even criminal speech behavior may use the
anti-SLAPP procedures in a lawsuit against him for civil
extortion and intentional infliction of emotional
distress. This bill, as it pertains only to SLAPPbacks,
does not directly affect that pending case although the
Court may, if it wishes, take judicial notice of the
Legislature's treatment of "indisputably illegal"
statements or conduct.
5. Findings regarding SLAPPbacks and its deterrent effect on
SLAPPS
The proposed findings in Section 3 are intended to
sensitize the courts to the different character and
origin of SLAPPback lawsuits and its value in protecting
against SLAPP litigation as a deterrent. The revised
proposal follows its predecessor statutes, Sections
425.16 and 425.17, in stating legislative intent to guide
the court's interpretation of the statute.
6. Some proponents prefer the broader Assembly version
passed 74 - 0, prior to recordation of opposition from
CJAC and CDC
As proposed to be amended, AB 1158 is narrower than the
version approved 74 - 0 by the Assembly. That bill would
have categorically barred an anti-SLAPP motion from being
filed in a SLAPPback; would have overturned a Supreme
Court and a court of appeal case holding that the denial
of an anti-SLAPP motion (Wilson v. Parker, Covert &
Childester, supra) or a defense summary judgment motion
(Roberts v. Sentry Life Insurance (1999) 76 Cal. App. 4th
375) shows probable cause for the party to file the
action, thus providing a defense to a malicious
prosecution action; and would have enacted legislative
findings deeming any SLAPPback action (not just limited
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to malicious prosecution or abuse of process claims) to
be a favored action. Some proponents of AB 1158 strongly
favor the broader version, contending that the revised
proposal has been watered down until it has no value.
In the Assembly version approved 74 - 0, the Civil
Justice Association of California (CJAC) and the
California Defense Counsel (CDC) have "opposed"
positions. Their recorded positions came after the
Assembly vote. The Consumer Attorneys of California
(CAOC) also had concerns which they were addressing with
the author's office. The revised proposal removes the
opposition of the CDC. CAOC reports that its concerns
have been addressed. CJAC is likely to still oppose,
however.
a) Categorical exemption for SLAPPbacks from
anti-SLAPP motion
As passed by the Assembly, AB 1158 proposed to make
the anti-SLAPP motion inapplicable in any SLAPPback
action (any malicious prosecution claim or any other
cause of action arising from the filing or maintenance
of a prior cause that has been dismissed pursuant to
the granting of an anti-SLAPP motion). Proponents
argued that is unfair and illogical to use the
anti-SLAPP statute to protect a SLAPPer. Some
proponents also argued that this provision was
necessary to encourage contingency fee attorneys to
accept SLAPPback cases; otherwise, the possibility of
having to defend against an anti-SLAPP motion would
deter these attorneys from taking the cases.
Proponents also argued that Professor Pring had
recommended this provision to the Judicial Council in
his 1999 report to the Legislature on SLAPPs.
Proponents assert that the change would prevent the
law from creating a "merry-go-round of abuse." In
response, the Judicial Council declined to adopt the
recommendation as being unnecessary because the judge
hearing the SLAPPback case can determine whether the
special motion is meritorious or not. Implicitly, the
Council appears to recognize that a SLAPPback claim
may itself be a SLAPP, which should be dismissed
pursuant to an anti-SLAPP motion.
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Committee staff and others, such as the CAOC and CDC,
also had significant reservations about the
categorical exemption. Since the California Supreme
Court's decision in Briggs v. Eden Council for Hope
and Opportunity (1999) 19 Cal.4th 1106, where the
Court followed the Legislature's direction and broadly
construed the anti-SLAPP law to protect any statement
made in any legislative, judicial or other official
proceeding under the anti-SLAPP law, even if the
statement did not concern a public issue or issue of
public interest, anti-SLAPP motions are apparently the
favored motion of business and "little guy" defendants
alike. Indeed, as noted earlier, three members of the
Supreme Court have opined, "?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." (Justice Brown, dissenting (with
Justices Baxter and Chin concurring), Navellier v.
Sletten (2002) 29 Cal.4th 82, 96.)
Thus, unforeseeable court rulings that broadly
construe the anti-SLAPP law could result in cases of
first impression where the "little-guy" plaintiff was
truly not engaging in SLAPP litigation, but is
nonetheless found to be a SLAPPer. That person would
be precluded from using the anti-SLAPP law to defend
himself or herself against the follow-up SLAPPback
SLAPP suit. Particularly in light of the
unforeseeable application of the anti-SLAPP motion to
more and more situations, a categorical exemption
seemed fraught with the risk of unintended
consequences. Can every future SLAPPback claim be
presumed to not be a SLAPP case itself?
A categorical exemption of SLAPPbacks from the
anti-SLAPP law would also abrogate Jarrow Formulas Inc
v. LaMarche (2203) 31 Cal. 4th 728, a unanimous
decision which held that a malicious prosecution suit
is not exempt from scrutiny under the anti-SLAPP law.
In light of the above concerns, committee staff
with the author's office and interested parties
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convened, discussed alternatives, and arrived at the
compromise proposal to continue allowing the filing of
an anti-SLAPP motion in a SLAPPback but eliminating
some of the risks to the SLAPPback filer if the motion
succeeds.
Some proponents of AB 1158 argue that a categorical
exemption better protects SLAPP victims, and that any
fear of unintended consequences is sheer abstract
speculation.
b) Overturning Roberts and Wilson
A second component of that bill would, in Section
425.16(b)(4) [henceforth (b)(4)], provide that "a
denial of a defendant's special motion to strike or
other dispositive motion shall not constitute probable
cause for bringing or maintaining the cause of action
challenged by the motion if the defendant ultimately
prevails under this section with respect to that cause
of action." This language was intended to overturn a
Supreme Court case (Wilson) and a court of appeals
case (Roberts), both malicious prosecution cases. In
Wilson, the Supreme Court held a trial court's denial
of an anti-SLAPP motion established probable cause to
bring that underlying action and, therefore, precluded
the filing of a subsequent malicious prosecution
action, even if that court ruling is later reversed on
appeal. (One element of a malicious prosecution
action is the absence of probable cause for bringing
the prior action.) In Roberts, a non-SLAPP case, a
court of appeal held that a denial of a defense
summary judgment motion establishes probable cause,
sufficient to defeat any later malicious prosecution
action, even if a party succeeds in overturning that
denial on appeal.
Proposed (b)(4) would have overturned those two cases
to allow a party who eventually prevailed on the
anti-SLAPP motion in that action to file a SLAPPback
claim, regardless of prior adverse rulings. However,
the language of (b) (4) was not just applicable to
anti-SLAPP and summary judgment motions. It would
also have applied to motions for directed verdict and
motions for judgment notwithstanding the verdict. It
seem particularly problematical to say that where a
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jury has rendered a verdict, and where the JNOV motion
was denied but the jury verdict is overturned on
appeal, perhaps due to new law or new facts, that the
plaintiff did not have probable cause to file the
original claim and would no probable cause defense to
a malicious prosecution lawsuit even though a jury had
once found in his favor. Here, too, the provision did
not seem well crafted.
The California Defense Counsel strongly opposed the
overturning of the Wilson and Roberts cases,
contending that the bill would upset long settled
precedents holding malicious prosecution to be a
disfavored action, and unwisely sought to cure one
evil of perceived litigation abuse by promoting more
of the same historically disfavored litigation.
c) Deeming a SLAPPback a favored action
In addition to overturning a line of malicious
prosecution cases, AB 1174 would deem a malicious
prosecution action and related claims arising from
dismissal of a SLAPP suit to be a "favored action
because it furthers petition and speech rights."
This statement, if adopted, would have overturned
cases holding malicious prosecution to be a
"disfavored remedy" as applied to a SLAPPback action.
Moreover, because of its reference to related claims
arising from dismissal of the SLAPP suit, any claim
filed as part of a SLAPPback action would be
"favored." Thus, damages claim for emotional
distress, conspiracy, common law tort, defamation,
unfair trade, business interference, invasion of
privacy, extortion, abuse of position of public trust,
misrepresentation, sex discrimination, and even
assault and battery, would be deemed favored if filed
as part of a SLAPPback action. Like the categorical
exemption for SLAPPbacks, this provision was thought
to be fraught with risks of unintended consequences.
7. Providing hearing scheduling flexibility for anti-SLAPP
motion
Existing law requires that when an anti-SLAPP motion is
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filed it must be noticed for hearing within 30 days.
This provision is intended to ensure that a defendant can
quickly obtain a hearing on his or her motion to defeat a
SLAPP suit at the earliest possible time. Two recent
appellate court decisions, however, have held that this
requirement is jurisdictional, and the motion must be
dismissed if not heard within that time period.
This bill would correct those cases and would instead
require the motion to be scheduled by the clerk for court
hearing not more than 30 days after service of the motion
unless docket conditions of the court require a later
hearing.
8. Preserving evidentiary objections in an anti-SLAPP
hearing
The bill also provide that on appeal a party's
evidentiary objections in the trial court are not deemed
waived if the trial court does not rule on or sustain
them, so long as the party requested a ruling on them at
the hearing if one occurred. In one recent case, the
sponsor reports, the court held that the defendant waived
its evidentiary objection to a crucial piece of evidence
by failing to obtain a ruling on it in the trial court.
The court gave no explanation for this holding, other
than an ambiguous reference to a case construing the
summary judgment statute. The sponsor argues that the
reasoning behind this decision is flawed and it unfairly
penalizes SLAPP victims for the trial courts' failure to
rule on a timely objection.
This bill would set forth a clear rule for litigants to
preserve on appeal their evidentiary objections in an
anti-SLAPP motion.
Support: Professor George Pring; California Broadcasters
Association; California Medical Association;
California Newspaper Publishers Association;
Golden State Manufactured-Home Owners League;
Mexican Political Association; Natural Resources
Defense Council; Planning and Conservation
League; 8 individuals; 3 attorneys
AB 1158 (Lieber)
Page 17
Opposition:Civil Justice Association of California;
(California Defense Counsel is neutral on
proposed amended version)
HISTORY
Source: California Anti-SLAPP Project
Related Pending Legislation:None Known
Prior Legislation:SB 515 (Kuehl), Ch. 338, Stats. 2003
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
Prior Vote:Assembly Floor (74 - 0)
Aseembly Judiciary Committee (6 - 3)
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