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What Is A Motion for Strategic Lawsuit Against Public Participation (“SLAPP”)?

SLAPP Motions Are Effective Ways to Dispose of A Frivolous Case Without Having to Go Through Trial

The term SLAPP is an acronym for Strategic Lawsuits Against Public Participation. A SLAPP motion refers to a “special motion to strike” under the anti-SLAPP statute that seeks to dismiss a civil lawsuit at an early stage in the litigation so that the sacred rights of petition and free speech are not chilled by costly litigation. Special motions to strike under the anti-SLAPP statute apply to any civil cause of action that arises out of the defendant’s petition or free-speech activity in connection with a public issue. SLAPP motions challenge both the legal and evidentiary sufficiency of the complaint at an early stage in the litigation without discovery.

In general, the defendant makes a special motion to strike and the plaintiff opposes it. The statute “requires the court to engage in a two-step process.” Cabrera v. Alam, 197 Cal. App. 4th 1077 (2011). “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” Id. at 1085-86. “The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute.” Id.

The Distinction Between Public Versus Private Matters

The third and fourth categories of “protected speech” involves speech that is made in connection with a public issue or an issue of public interest. If the Court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Cabrera, 197 Cal. App. 4th at 1086. “The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.” Id.

“In evaluating the first prong of the anti-SLAPP statute, [the Court] must focus on the “specific nature of the speech rather than the generalities that might be abstracted from it.” World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., 172 Cal. App. 4th 1561 1570 (2009) (citation omitted). “[T]hat a broad and amorphous public interest can be connected to a specific dispute is not sufficient to meet the statutory requirements of the anti-SLAPP statute.” Id.

In addition to focusing on the specific nature of the speech, courts have articulated the following principles to distinguish private matter from public matter.

  1. public interest does not equate with mere curiosity;
  2. a matter of public interest should be a matter of concern to a substantial number of people, not to a relatively small, specific audience;
  3. there should be some degree of closeness between the statements at issue and the asserted public interest;
  4. the focus of the speaker’s conduct should be the public interest rather than an effort to ‘gather ammunition’ for a private controversy; and
  5. those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. (Weinberg, 110 Cal. App. 4th at 1132-33).)

In Weinberg, a collector sued a publisher for defamation, after the publisher told others that the collector had committed theft. The publisher sought anti-SLAPP protection and claimed that an accusation of criminal activity inherently involves the public interest. The court disagreed. It held that the dispute was nothing more “than a private dispute between private parties. The fact that defendant allegedly was able to vilify plaintiff in the eyes of at least some people establishes only that he was at least partially successful in his campaign of vilification; it does not establish that he was acting on a matter of public interest.” Id. at 1134.

The court drew a distinction between cases involving public figures, and cases involving accusations made as part of an official proceeding. Because the plaintiff in Weinberg was not a public figure and the publisher “did not report his suspicions to law enforcement, and there is no evidence that he intended to pursue civil charges against plaintiff …, defendant’s accusations against plaintiff related to what in effect was a private matter”; and, thus the anti-SLAPP statute did not apply. Id. at 1135. “Otherwise, wrongful accusations of criminal conduct, which are among the most clear and egregious types of defamatory statements, automatically would be accorded the most stringent protections provide by law, without regard to the circumstances in which they were made,” which would undermine the protections of defamation law. Id. at 1136.

Weinberg relied on Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO, 105 Cal. App. 4th 913 (2003). The court considered a defamation suit by a supervisor, who alleged that the union had distributed documents to its 17,000 members, stating he had committed theft and solicited bribes. In arguing that the statements were in connection with a public issue, the union said: “abusive supervision of employees throughout the University of California system is an issue of particular public interest because it impacts a community of public employees numbering 17,000.” Id. at 919. The court said no: “If the union were correct, discussion of nearly every workplace dispute would qualify as a matter of public interest. We conclude, instead, that unlawful workplace activity below some threshold level of significance is not an issue of public interest, even though it implicates a public policy.” Id. at 924; see also Olaes v. Nationwide Mut. Ins. Co., 135 Cal. App. 4th 1501, 1510 (2006) (defamation based on statements made during sexual harassment investigation does not trigger anti-SLAPP statute, despite the public interest in investigating sexual harassment claims).

The Du Charme Requirement Of An Ongoing Controversy Or Dispute

There is a further requirement where the “issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community),” such as a “3,000-member homeowners association or a 10,000-member union.” Du Charme v. International Brotherhood of Electrical Workers, 110 Cal. App. 4th 107, 118-119 (2003). In such a case, the speech “must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion …. ” Id. at 119 (emphasis added).

In Du Charme, a union posted a statement on the union’s website that the plaintiff had been removed from office for financial mismanagement. Though the statement “was presumably of interest to the membership,” it was “unconnected to any discussion, debate or controversy” that was ongoing at the time. Id. at 118-19. The Du Charme rule has been followed repeatedly by other courts. See, e.g., Kurwa v. Harrington, Foxx, Dubrow & Canter LLP, 146 Cal. App. 4th 841, 847-48 (2007) (communication was not subject to SLAPP statute because it was of interest to a “narrow segment of society” and it was not made in connection with an “ongoing controversy, debate or discussion”); World Financial Group, Inc., 172 Cal. App. 4th at 1573 (same).