BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 1675 A
Assembly Judiciary Committee B
As Amended May 28, 1999
Hearing Date: June 29, 1999 1
Code of Civil Procedure 6
JMR:cjt 7
5
SUBJECT
Right to Appeal Decisions on Anti-SLAPP
(Strategic Lawsuits Against Public Participation) Motions
DESCRIPTION
This bill would permit an appeal of an order granting or
denying a motion to strike under the anti-SLAPP statute.
It also would require the party filing an anti-SLAPP
motion, and any party opposing the motion, to send certain
documents to the Judicial Council to be maintained as part
of a public record on these motions.
(This analysis reflects author's amendments to be offered
in Committee.)
BACKGROUND
Strategic Lawsuits Against Public Participation, or SLAPP
suits, 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
(more)
AB 1675 (Asm. Jud. Comm.)
Page 2
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" which could be used by
defendants in "SLAPP" suits to obtain an early judicial
ruling and termination of a meritless claim arising from a
person's exercise of the right to petition or free speech
under the United States or California Constitution in
connection with a public issue. In enacting the provision,
the Legislature expressly found that "there has been a
disturbing increase in lawsuits 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."
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 in connection with
a public issue, is subject to a special motion to strike,
unless the court, after considering the pleadings and
supporting and opposing affidavits, determines that there
is a probability that the plaintiff will prevail on the
claim. (Code of Civil Procedure Section 425.16. Other
further references are to this code unless indicated
otherwise.)
Existing law specifies that the right to appeal is granted
and governed by statute. (Code of Civil Procedure Sections
902 and 904.) Most judicial orders are not immediately
appealable, but can be reviewed only as an appeal from the
final judgment at the conclusion of the case. (Section
AB 1675 (Asm. Jud. Comm.)
Page 3
904.1; De Lao v. Superior Court (1951) 37 Cal.2d 711.)
Existing law defines "judgment" as the final determination
of the rights of the parties. (Section 577.) The courts
have stated that there can be "but one final judgment in an
action, and that is one which in effect ends the suit in
the court in which it was entered, and finally determines
the rights of the parties in relation to the matter in
controversy." ( Bank of Am. Nat'l Trust & Sav. Ass'n v.
Superior Court (1942) 20 Cal.2d 697, 701.) Generally, an
appeal may be taken only from this final judgment in an
action.
Existing law provides that even if an order is not
immediately appealable, the party may be able to obtain
discretionary appellate review via an extraordinary writ
petition. Writs typically allow the court of appeal to
correct error when the petitioner has no immediate right of
appeal, no adequate remedy at law, and a beneficial
interest in the outcome. (Sections 1068-1069, 1086, and
1103.)
Existing law 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, including enforcement of the judgment or
order, but the trial court may proceed upon any other
matter embraced in the action and not affected by the
judgment or order. (Section 916.)
This bill would provide that an order granting or denying a
special motion to strike shall be immediately appealable,
and therefore, the perfecting of the appeal would stay
proceedings in the trial court.
This bill also would require the party filing an anti-SLAPP
motion, and any party opposing the motion, to send certain
documents to the Judicial Council to be maintained as part
of a public record on these motions.
COMMENT
1. Stated need for legislation
According to the proponents, this bill would further the
AB 1675 (Asm. Jud. Comm.)
Page 4
purpose of the anti-SLAPP statute by allowing the
defendant to immediately appeal a denial of a special
motion to strike. Without this ability, a defendant will
have to incur the cost of a lawsuit before having his or
her right to free speech vindicated.
The proponents contend that when a meritorious anti-SLAPP
motion is denied, the defendant, under current law, has
only two options. The first is to file a writ of appeal,
which is discretionary and rarely granted. The second is
to defend the lawsuit. If the defendant wins, the
anti-SLAPP statute is useless and has failed to protect
the defendant's constitutional rights. The proponents
assert that since the right of petition and free speech
expressly granted by the U.S. Constitution are at issue
when these motions are filed, the defendant should have
the immediate right to appeal and have the matter
reviewed by a higher court.
The author is submitting amendments in Committee to
clarify that the right to appeal would apply to motions
granted or denied in order to assure that both the
plaintiff and defendant are given equal rights to appeal
an adverse order.
2. Creating a public record of anti-SLAPP motions filed
This bill would require the party filing an anti-SLAPP
motion, and any party opposing the motion, to send
certain documents to the Judicial Council to be
maintained as part of a public record on these motions.
When the anti-SLAPP statute was enacted, the Legislature
requested that the Judicial Council report on the
statute's effectiveness after five years of operation.
Specifically, the Legislature requested that the Judicial
Council report by January 1, 1998, on the frequency and
outcome of motions to strike and on "any other matters
pertinent to the purposes of this section."
The report, which was recently distributed, made
recommendations on several issues, including further data
collection. As to this issue, the Judicial Council
report concluded:
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The Judicial Council does not believe that further
data collection on special anti-SLAPP motions by the
courts is necessary. The information already obtained
by staff is adequate to indicate that special
anti-SLAPP motions are not very common. Most survey
respondents believed the existence of the statute
deters SLAPP suits as the Legislature intended. A
case-level review is required to collect data on
special anti-SLAPP motions. Further tracking of
Section 425.16 would be burdensome and costly and
should not be required. (Legislative Report: Special
Motions to Strike Strategic Lawsuits Against Public
Participation, May 28, 1999, p. 4.)
However, the specialists in the area that were hired by
Judicial Council as consultants on the report came to a
different conclusion. Because SLAPP suits are a highly
specialized area of the law, two leading specialists on
SLAPP suits, Penelope Canan, Ph.D., and George W. Pring,
J.D., were hired as consultants on a contractual basis to
analyze the results of the Judicial Council staff's data
collection efforts. The consultants' views differ in
significant respects from that of the council's on
several issues. As to the data collection, the
consultants stated:
If the Legislature requires knowing how the anti-SLAPP
provision is working, it must enable reliable
research. At a minimum it should require the filing
of a simple form whenever the motion is entered. Then
a random sample of these could be selected and various
participants interviewed about impacts. (Legislative
Report, supra, p. 4.)
DOES THE LEGISLATURE WANT TO FURTHER TRACK THE
EFFECTIVENESS OF THE ANTI-SLAPP STATUTE?
Support: California Broadcasters Association; California
Newspaper Publishers Association; American Civil
Liberties Union; California Anti-SLAPP Project;
League of California Cities; Golden State Mobilhome
Owners League, Inc.; California Employment Lawyers
Association; Rural Canyons Conservation Fund;
Planning and Conservation League
AB 1675 (Asm. Jud. Comm.)
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Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Asm. Floor 79-1; Asm. Appr. 14-7; Asm. Jud.
12-0
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