This post is the second in a series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeffrey Lewis. In the prior post, I described in general what California’s anti-SLAPP law is and how it protects persons sued for exercising their First Amendment rights. Not all lawsuits, however, are entitled to protection under California’s anti-SLAPP statute. Only those “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances\” will be subject to a special motion to strike under California’s anti-SLAPP law. (Code Civ. Proc, § 425.16, subd. (a).) Generally speaking, the three groups of activities that are protected by the anti-SLAPP law are: a) accessing the courts; and b) making statements in connections with a judicial, legislative or executive proceeding; and c) statements made in a public forum concerning an issue of public interest. If the court concludes that a defendant has been sued based on the defendant either accessing the court or making statements protected by the First Amendments, the anti-SLAPP law will apply. California courts have broadly construed the application of anti-SLAPP protection. For example,
When CNN declined to provide closed captioning services for the hearing impaired, a group sued CNN for violations of California and federal laws protecting disable persons. The network brought an anti-SLAPP special motion to strike. The Ninth Circuit held that CNN’s decision was an action protected by the First Amendment thus triggering anti-SLAPP protection. (Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d 414, 423)
The Orange County Register published an article on its website and allowed readers to post comments. One reader complained about disparaging comments made about another reader. When the newspaper declined to remove the comments, a reader sued the newspaper. The Court of Appeal ultimately held that a commenting forum concerning areas of public interest \”is a quintessential way\” to facilitate free speech rights and applied the anti-SLAPP law to the case. (Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398, 405).
Lawyers who filed foreclosure and unlawful detainer actions were sued based on allegations that they knew the foreclosures were not valid. Because the filing of the prior unlawful detainer actions were statements made in a judicial proceeding, the lawyers’ conduct was protected by the First Amendment and California’s anti-SLAPP law. (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120; see also JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1521 [holding that “Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit.\”].)
There are some important limitations on anti-SLAPP protections. In the next post, I will cover those types of activities that courts have ruled are not protected activity covered by California’s anti-SLAPP statute.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.