2023 Appellate court opinions: Anti-SLAPP

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California has a strong anti-SLAPP (Strategic Lawsuit Against Public Participation) law. To challenge a SLAPP suit in California, defendants must show that they are being sued for “any act . . . 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.” (Cal. Civ. Proc. Code § 425.16.) Under the statute, the rights of free speech or petition in connection with a public issue include four categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furtherance of the exercise of free speech or petition rights in connection with “a public issue or an issue of public interest.” (Id. at § 425.16(e).)

If a defendant’s anti-SLAPP motion is granted, plaintiff will be required to pay defendant’s attorney’s fees incurred in bringing the motion. Thus, the anti-SLAPP motion is an effective tool to thwart improper lawsuits challenging a party’s First Amendment rights. In 2023, the courts of appeal published numerous opinions relating to the anti-SLAPP motions in a variety of contexts.

In elder abuse case, daughter’s application for an elder abuse restraining order against her father’s second wife and step-daughter survived an anti-SLAPP challenge because defendants’ attempts to control the father were not protected activities.

In White v. Davis White, co-trustee of living trust, who was Thomas’ daughter, applied for elder abuse restraining orders (“EAROs”) against Thomas’ stepdaughter and wife, the attorney who purported to represent Thomas, and others pursuant to Elder Abuse and Dependent Adult Civil Protection Act, alleging defendants were attempting to unduly influence Thomas, who was under conservatorship, to change his estate plan to their benefit, including by initiating legal actions to remove co-trustees of living trust and to terminate conservatorship. All of the defendants filed special motions to strike applications under anti-SLAPP (strategic litigation against public participation) statute on the grounds that the applications for EAROs arose from protected activities involving the exercise of constitutionally protected rights of petition and to freedom of speech. The trial court denied the anti-SLAPP motions.

The court of appeal affirmed concluding that applications for EAROs did not arise out of defendants’ protected activity, but out of their actions to unduly influence Thomas regarding his decades-long estate plan.

Trial court properly granted anti-SLAPP motion where the gravamen of dispute arose from a lawsuit, a protected activity under the anti-SLAPP statute.

In Cordoba Corp. v. City of Industry the City of Industry sued Cordoba Corporation (“Cordoba”), among others, after uncovering allegedly fraudulent billings for a solar energy development. Cordoba filed a cross-complaint. The trial court granted the City’s special motion to strike it as a strategic lawsuit against public participation (“anti-SLAPP motion”) on the ground that filing a lawsuit is protected activity.

The Court of Appeal affirmed the order. The court explained that Cordoba did not deny filing a lawsuit is protected activity. Instead, it argued its three causes of action arise not from the City’s petitioning activity, but from the City’s noncompliance with its contractual obligations. The court wrote that this is a “distinction without a difference.” Further, the court explained that the court properly struck Cordoba’s breach of contract claim because the conduct Cordoba attacked was protected petitioning activity.

Court of Appeal holds that allegations underlying a claim of misused trust assets were not protected activities under anti-SLAPP statute because misusing trust assets is not in furtherance of a right of petition or free speech.

In Starr v. Ashbrook Jonathan Starr brought a probate petition challenging the actions of M. Thomas Ashbrook (“Ashbrook”), who was acting as the trustee of the revocable trust of Jonathan’s father, Arnold Starr. The petition alleged that Ashbrook had wasted and misused trust assets by pursuing a meritless petition for instructions and using trust assets to fund litigation against Jonathan Starr and his brothers. Ashbrook responded by bringing a special motion to strike the surcharge cause of action pursuant to California’s anti-SLAPP statute. The trial court concluded the allegations of the surcharge cause of action did not arise out of activity protected by section 425.16 and denied Ashbrook’s anti-SLAPP motion.

Ashbrook appealed the order denying his anti-SLAPP motion. The Court of Appeal concurred with the trial court that the alleged waste and misuse of trust assets was the injury-producing activity allegedly giving rise to Ashbrook’s liability for breach of trust. Because the surcharge cause of action did not arise out of allegations of protected activity the Court affirmed the order denying Ashbrook’s anti-SLAPP motion without addressing the second step of the anti-SLAPP analysis (i.e. probability of success on the merits).

Court of Appeal affirms trial court’s order denying a defendant’s anti-SLAPP motion where the plaintiffs failed to show the defendant had lacked probable cause or acted out of malice in naming them in a prior quiet title action.

In Water for Citizens of Weed California v. Churchwell White LLP defendants Churchwell White LLP, a law firm, and two of its attorneys, Barbara Brenner and Robin Baral (collectively “Churchwell”) represented a corporation in an action to quiet title to water rights. In the quiet title action, Churchwell sued the City of Weed (“City”) and Water for Citizens of Weed California, its members, and other citizens of the City (collectively “Citizens”). The trial court in that action granted Citizens’s special motion to strike the complaint (an anti-SLAPP motion). Citizens then filed an action against Churchwell, alleging malicious prosecution for naming them in the quiet title action. Churchwell, in turn, filed its own anti-SLAPP motion, which the trial court granted, concluding Citizens did not establish a probability of prevailing on their claim.

The trial court determined Citizens did not show that Churchwell lacked probable cause or acted out of malice in naming them in the quiet title action. Citizens appealed, but finding no reversible error, the Court of Appeal affirmed the grant of Churchwell’s motion.

Property owner’s anti-SLAPP motion was reversed because his protected petitioning activity did not constitute the factual allegations in appellants’ petition for writ of mandate against San Francisco housing decision makers.

In Durkin v. City and County of San Francisco after the San Francisco Planning Commission approved a final mitigated negative declaration for the Durkin’s proposed renovation of a residence, Kaufman, the owner of an adjacent property, appealed the matter to the San Francisco Board of Supervisors, which reversed the approval. Durkin filed a petition for writ of mandate against the City and County, the Board, the Planning Commission, and the Planning Department, naming Kaufman as a real party in interest. In response, Kaufman filed a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) law arguing that the petition arose from his protected petitioning activity and lacked minimal merit. The trial court granted the anti-SLAPP motion and awarded Kaufman attorney fees as the prevailing party.

The Court of Appeal reversed on the grounds that the trial court erred in finding the petition arose from Kaufman’s protected conduct, as the activities that form the basis for the petition’s causes of action are all acts or omissions of the Board. According to the court, that Kaufman’s administrative appeal preceded or even triggered the events leading to the petition’s causes of action against the Board did not mean that the petition arose from Kaufman’s protected conduct within the contemplation of the anti-SLAPP law.

Hirer’s statements about a nanny to her agency about her termination were not protected statements made in anticipation of litigation because the threat of litigation was merely theoretical.

In Nirschl v. Schiller defendants hired plaintiff Nirschl as a nanny. Thereafter, defendants terminated plaintiff’s employment. They hoped plaintiff would release potential claims against them in exchange for a severance payment. Defendants asked a friend (who ran a nanny placement service and had helped hire plaintiff) to propose the severance arrangement to plaintiff. Plaintiff did not sign the proposed severance agreement. Instead, she brought wage-and-hour claims against defendants. Following discovery, plaintiff amended her complaint to add a claim for defamation. She based her defamation claim on statements defendants made to the intermediary during the negotiations over severance. Specifically, plaintiff claims defendants defamed her by accusing her of “repeated misconduct”, including: (1) falsifying time and expense records; (2) verbally assaulting the minor child by referring to him as “you fucking little shit”—a phrase that defendant claims the minor child continues to repeat; (3) violently shaking the minor child after he had gone to the bathroom in his diaper; and (4) failing to disclose that Nirschl was in a car crash with the minor child in the car. Defendants responded with an anti-SLAPP motion. They argued that the allegedly defamatory statements were made in anticipation of litigation. They moved to strike not only the new defamation allegations but also the entire complaint. The trial court denied the anti-SLAPP motion and required the defendants to pay some of plaintiff’s attorney fees.

The Court of Appeal affirmed. The court explained that defendants did not show that plaintiff’s defamation claim was based on activity protected by the anti-SLAPP law since future litigation was not anticipated when the defendants allegedly made the defamatory statements about plaintiff.

Court of Appeal holds that a Congresswoman’s anti-SLAPP motion was granted in error because plaintiff had made a preliminary evidentiary showing that he could prevail in his underlying defamation suit.

In Collins v. Waters challenger Joe E. Collins III and incumbent Maxine Waters competed in 2020 for a seat in Congress. During the campaign, Waters accused Collins of a dishonorable discharge from the Navy, a charge that Collins disputed. Collins even showed Waters a document saying so. Collins sued Waters for defamation during the campaign, but Waters convinced the trial court to grant her special motion to strike (anti-SLAPP) his suit.

The Court of Appeal reversed the trial court’s order. The court explained that the document Collins showed Waters was obviously official. There was nothing suspicious about its appearance. The document, if genuine, would have established without doubt that defendant’s charge was false. Waters easily could have checked its authenticity but did not. The court explained that the preliminary posture of the case required the trial court to accept Collins’ evidence as true. The evidence created a possible inference of Waters’ willful blindness, which is probative of actual malice. As a result, Collins met his burden of establishing the second prong of the anti-SLAPP analysis: probability of success on his defamation claim.

Court of Appeal holds that trial court property awarded prevailing party post-judgment collection costs on anti-SLAPP judgment because opposing party waived his right to object to the costs by failing to file a timely motion to tax costs.

In Briggs v. Elliott a judgment creditor, who had successfully moved to strike a defamation complaint under the anti-SLAPP statute and had been awarded attorney fees, filed a verified memorandum of post-judgment collection costs. The judgment debtor filed an opposition to creditor’s motion for attorney’s fees, but failed to file a timely, stand-alone motion to tax costs. The trial court awarded the creditor post-judgment costs plus interest due to the debtor’s failure to timely file a motion to tax.

The Court of Appeal affirmed. The court noted that Code of Civil Procedure section 685.070 (d), states that, “If no motion to tax costs is made within the time provided ... the costs claimed in the memorandum are allowed.” In essence, according to the court, “[s]ection 685.070 provides that if the judgment creditor files a memorandum of costs and the judgment debtor does not timely file a motion to tax costs, then the court is required to allow all of the costs claimed in the memorandum of costs.” The failure to file the motion to tax constituted a waiver of the right to object.

Court of Appeal holds that a professor’s petition to prevent disclosure of her communications with academic journals arose from protected activity under the anti-SLAPP statute because the disclosure request was a newsgathering event.

Iloh v. Regents of the University of California arose out of a university’s investigation of potential plagiarism by one of its professors. The Center for Scientific Integrity (“CSI”) was an organization that reported on academic retractions and accountability. CSI wrote an article about plaintiff Constance Iloh, a professor at the University of California, Irvine (“UCI”) after several academic journals retracted articles Iloh had written due to concerns about possible plagiarism or inaccurate citation references. In a follow-up to that article, CSI sent UCI a records request under the California Public Records Act (“CPRA”) requesting Iloh’s post-publication communications with the journals and UCI.

Iloh petitioned for a writ of mandate, declaratory relief, and injunctive relief against UCI to prevent disclosure of her communications, and later added CSI as a real party in interest. She then filed a motion for preliminary injunction to prevent disclosure. CSI filed a motion to strike Iloh’s petition under the anti-SLAPP statute. The trial court denied the motion, finding that although protected activity may have led to the petition, it was not the “basis” for the petition. The trial court did not analyze the second prong of the anti-SLAPP statute – the probability of success on the merits.

The Court of Appeal reversed. It reasoned that in issuing the CPRA request, CSI was engaging in “newsgathering” so it could report on matters of public interest, such as how a public university funded largely by taxpayer dollars resolved quality or integrity problems in its professors’ publications. CSI was therefore engaged in protected activity when it issued the CPRA request. Iloh filed her petition for mandamus relief to prevent UCI from complying with the CPRA request. “This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.”

The Court of Appeal also found the trial court had not performed the second prong of the anti-SLAPP analysis. Therefore, the Court reversed the order denying CSI’s anti-SLAPP motion and remanded the case with directions that the trial court consider prong two of the anti-SLAPP statute.

Court of Appeal holds that defendant’s anti-SLAPP motion was properly denied since was no “functional relationship” between excluding an executive producer of a popular docuseries and the public interest in the project and its themes.

In Li v. Jenkins plaintiff Li sued defendants Jeff Jenkins, Jeff Jenkins Productions, LLC, and Bongo, LLC, for breach of contract and eight other causes of action relating to an idea for a television program. Plaintiff’s complaint alleged she conceived the idea for and worked to develop and coproduce a popular television program that came to be known as Bling Empire on Netflix. In the spring of 2018, Plaintiff presented the idea for the program to defendant Jenkins during a series of discussions, and she gave Jenkins written development material concerning the program. Plaintiff alleged causes of action for breach of the implied covenant of good faith and fair dealing, intentional and negligent misrepresentation, fraudulent inducement, and other claims. Defendants responded with an anti-SLAPP motion which was denied by the trial court.

The Court of Appeal affirmed the trial court’s order denying defendants’ anti-SLAPP motion to strike plaintiff’s complaint. The court concluded that while the creation of a television show is an exercise of constitutionally protected expression, in this case, there is no “functional relationship” between the activity challenged in the complaint and the issue of public interest, as required by legal precedent, specifically FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133. Further, the court wrote that the conduct challenged, while it “implicates” a public issue, does not “contribute to public discussion of that issue” Consequently, defendants’ activity excluding plaintiff and failing to compensate her was not undertaken “in furtherance of free speech ‘in connection with’ an issue of public interest.”

Court of Appeal holds that anti-SLAPP protection did not apply to city council’s cancellation of license agreement where the plaintiff’s claims were based on the city council’s ordinary business of governance, not its protected speech.

In Mary’s Kitchen v. City of Orange plaintiff Mary’s Kitchen provided homeless services in the City of Orange. The City Manager for the City terminated Mary’s Kitchen’s license, citing safety concerns. Subsequently, the City Council held an executive (i.e., closed) session to discuss potential unspecified litigation. Afterward, the city attorney exited the meeting and declared that the council had “unanimously confirmed” the termination of Mary’s Kitchen’s license.

Mary’s Kitchen sued the City under the Ralph Brown Act (Government Code section 54950 et seq.) which requires that any contemplated action or topic of discussion be posted in an agenda at least 72 hours prior to the meeting. Mary’s Kitchen contended that the meeting agenda pertinent here did not mention anything about Mary’s Kitchen’s license. In response, the City filed an anti-SLAPP motion, arguing that because the agenda described the meeting as discussing legal matters, the complaint/petition arose out of protected activity. The City took the position that no action was taken at the meeting, and that the unanimous approval described in the minutes simply reflected inaction—i.e., that the city council chose to do nothing to override the city manager’s decision to terminate the license. The trial court denied the motion, concluding the complaint targeted the City’s failure to provide adequate notice of the confirmation of the license termination rather than anything that was said at the meeting.

The Court of Appeal affirmed concluding “[b]ut it is crystal clear that plaintiffs base their lawsuit on a claim that an action occurred, which is supported by a plausible inference from the meeting minutes. The action of ratifying the termination of the licensing agreement, assuming it occurred, is not conduct in furtherance of free speech; it is ordinary business.”

Court of Appeal holds that a law firm engaged under public university executive order to investigate workplace misconduct was prevailing party for anti-SLAPP fee-shifting because its conduct was related to an official proceeding authorized by law.

In Ross v. Seyfarth Shaw LLP a former linguistics professor at a state university and her husband, after dismissal of their federal employment-discrimination action against university and state officials, brought an action for defamation and other claims against the law firm and lawyer that had been engaged by the university, before professor brought legal action, to conduct an internal investigation into professor’s allegations that she had been harassed by colleagues, alleging that defendants had, with improper motive, conducted a biased and flawed investigation and had prepared and submitted a report that defamed professor.

The law firm and the attorney filed an anti-SLAPP motion seeking fees and costs pursuant to the statute. The trial court awarded the fees without finally ruling on defendants’ anti-SLAPP motion to strike—it issued a tentative ruling granting in part and denying in part the motion, and plaintiffs immediately thereafter dismissed their complaint. Plaintiffs appealed the fee award on the grounds that the anti-SLAPP statute did not apply to their claims.

The Court of Appeal affirmed on the grounds that all of plaintiffs’ claims were based on conduct protected by the anti-SLAPP statute, and no exceptions applied. Specifically, defendants’ investigation of the professor was an official proceeding authorized by law, and their communications were protected under the express terms of the anti-SLAPP statute. In addition, the court held that when a plaintiff dismisses his or her complaint while the defendant’s anti-SLAPP motion to strike is pending, the court retains jurisdiction to award fees and costs. This is because permitting an eleventh-hour dismissal to eliminate financial liability would undermine the deterrent purpose of the anti-SLAPP statute.

Court of Appeal holds that plaintiffs failed to comply with Code of Civil Procedure section 128.5(f)’s 21-day safe harbor provision before filing their motion for attorney fees as to defendant’s frivolous anti-SLAPP motion.

In Zarate v. McDaniel plaintiffs Zarate and Lopez filed a complaint asserting 18 causes of action against McDaniel and his girlfriend arising out of a tenant-landlord dispute. McDaniel filed an anti-SLAPP motion seeking to strike the claims asserted in the complaint. He alleged that plaintiffs’ claims against him arose out of his status as Torres’ boyfriend and his threats to prosecute an unlawful detainer action against plaintiffs, both of which McDaniel claimed were protected activities. The trial court denied McDaniel’s motion, and the court of appeal affirmed in an earlier opinion.

After the trial court denied the motion plaintiffs filed a motion to recover approximately $13,200 in attorney’s fees and costs from McDaniel on the grounds that the anti-SLAPP motion was frivolous. The motion was made, in part, pursuant to Code of Civil Procedure section 128.5 which requires a moving party to provide a 21-day “safe harbor” before filing the motion to allow the opposing party the opportunity to withdraw the “offending” pleading. Plaintiffs did not provide this safe harbor. The trial court granted plaintiffs’ motion for fees irrespective of the failure to comply with the safe harbor.

McDaniel appealed, and the Court of Appeal reversed. The anti-SLAPP statute specifically refers to section 128.5 when a party seeks to recover fees as a result of the denial of a frivolous anti-SLAPP motion. The court strictly construed the statute as requiring the safe harbor. Since plaintiffs did not provide the 21-day safe harbor, they are not entitled to attorney’s fees.

Court of Appeal affirms trial court order granting defendant attorney’s anti-SLAPP motion because malicious prosecution claim was time-barred by one-year statute of limitations.

In Escamilla v. Vannucci Escamilla, a fugitive recovery agent, searched the plaintiffs’ residence in 2012, looking for their relative, who had skipped bail. In 2014, the plaintiffs sued Escamilla based on the incident, asserting negligence, false imprisonment, assault, and battery. Attorney Vannucci represented the plaintiffs. In 2017, Escamilla filed a cross-complaint asserting abuse of process against the plaintiffs for instituting civil harassment proceedings resulting in a temporary restraining order. In 2019, the jury ruled in favor of Escamilla.

Approximately 23 months later, Escamilla filed a malicious prosecution complaint against the plaintiffs and Vannucci. Vannucci filed an anti-SLAPP motion, claiming the malicious prosecution claim arose out of his representation of the plaintiffs, a protected activity. and that Escamilla would not be able to prove a probability of prevailing because his malicious prosecution claim was barred by the one-year limitations period, Civil Code 340.6(a). Escamilla argued that his malicious prosecution claim was governed by section 335.1’s two-year statute of limitations. The trial court denied the motion on the grounds that the one-year statute of limitations applied.

The Court of Appeal affirmed holding that the one-year statute of limitations in section 340.6(a) governs “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.” It applies to malicious prosecution claims against attorneys who performed professional services in the underlying litigation.

Court of Appeal holds that an anti-SLAPP motion in malicious prosecution action should have been granted where defendant attorney made questionable calls regarding strategy, but it could not be said that no reasonable lawyer would have the advanced the claims he put forth.

Green Tree Headlands LLC v. Crawford arose from a dispute over an easement connected to a piece of property sold by Alan Patterson to Steven McArthur, who took title in the name of Green Tree Headlands LLC. After Patterson’s death, Crawford, as trustee of Patterson’s trust, managed the property and argued that the easement had expired based on the terms of the Declaration of Restrictions. McArthur disagreed, asserting that the easement remained in existence.

Crawford filed a lawsuit against McArthur, which she later voluntarily dismissed. McArthur then filed a malicious prosecution action against Crawford and his attorney, Graves. Crawford and Graves filed anti-SLAPP motions, which the trial court denied.

The Court of Appeal reversed, finding that Crawford and Graves had a reasonable basis to sue McArthur, as the Declaration of Restrictions, by itself, gave Crawford a factual basis to argue that the easement was temporarily limited and had expired.

Court of Appeal holds that defendant’s emails to Dartmouth College regarding a fellow high school senior’s student body election fraud were not protected anti-SLAPP speech because they never contributed to the public conversation on the election.

In Doe v. Ledor Doe alleged that his ex-girlfriend and her friends, including Ledor, embarked upon a “vengeful smear campaign” to harass and defame him after his senior year of high school. Specifically, in 2020, Ledor sent emails to Dartmouth College officials, stating essentially that Doe had committed voter fraud to win an election for student body president at Berkeley High School and providing links to what she represented to be articles and a podcast about the incident. After receiving the emails, Dartmouth revoked Doe’s offer of admission. Ledor later sent Instagram messages to two of Doe’s acquaintances, advising them to “avoid him” because “men like him grow up thinking it’s okay to disrespect women and be violent.”

Doe sued for defamation, false light, invasion of privacy, civil harassment, civil stalking, and intentional infliction of emotional distress, with a claim for vicarious liability against Ledor’s parents. The Ledors filed an anti-SLAPP motion which was denied by the trial court.

The Court of Appeal affirmed on the grounds that the Ledors did not meet their burden of showing that the statements in the Dartmouth emails involve protected activity under the anti-SLAPP statute. Specifically, the emails were made in connection with the high school’s disciplinary proceeding which was an “official proceeding authorized by law” even though there was no official proceeding when the emails were sent.