There Oughta Be a Law (And There is) – Anti-SLAPP 20 Years On

In 1992, the California legislature enacted a law to prevent the use of the judicial system to squelch public dialogue on important public issues. This law is commonly applied to cases involving constitutional free speech and petition, including statements made about or during litigation.


An action filed to silence one’s opponent is called a SLAPP suit—that is, a “Strategic Lawsuit Against Public Participation.” A party served with a SLAPP suit may file an “anti-SLAPP” motion to strike on the basis that the conduct was protected and there is no reasonable chance of prevailing on the merits. While many of the anti-SLAPP protections were already in place prior to the enactment, the statute allows a party to file a motion supported by evidence at the outset of the case.


Because either party may immediately appeal a ruling on an anti-SLAPP motion without having to wait until the end of the case, California appellate courts continue to issue many anti-SLAPP opinions, providing much-needed guidance to litigators. Two recent cases highlight the courts’ view of what constitutes protected conduct:


In Copenbarger v. Morris Cerullo World Evangelism, a sublessor served its sublessee a three-day notice to quit for breach of the sublease. In response, the sublessee sued the sublessor for various claims. The sublessor filed an anti-SLAPP motion, claiming that the sublessee’s complaint impinged on his right to serve the notice. The Fourth District Appellate Court held that although the service of the three-day notice may have triggered the complaint, it was not a SLAPP suit because it was not based on service of that notice, but rather based on the obligations to repair and maintain the property under the sublease. Accordingly, the anti-SLAPP motion to strike was properly denied. (Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237.)


In Castleman v. Sagaser, the Fifth District Appellate Court refused to extend anti-SLAPP protection to an attorney accused of selling out his client to spite his former law partner. In this case, Bratton, an attorney, sued his former law firm and client (Castleman) based on the encouragement of a former partner (Sagaser). Castleman cross complained against Sagaser for breach of the duty of loyalty owed to a former client while pursuing a personal vendetta against Bratton. Sagaser filed an anti-SLAPP motion, arguing that he consulted with Bratton only for the purpose of a partnership dispute with his former partner which was constitutionally protected activity. The court ruled that the claims, though involving protected litigation activity, were not protected because they were based on the allegation that Sagaser engaged in conduct inconsistent with his fiduciary obligations to Castleman, not based on his constitutionally protected speech or petition rights. (Castleman v. Sagaser (April 15, 2013) No. F064590.)


These cases remind litigants to carefully examine the conduct on which the complaint is based. While protected activity may have triggered a complaint, if the claims are not based on that protected activity an anti-SLAPP motion may not be successful. While anti-SLAPP motions do not always resolve a matter—as seen above—they are nevertheless very powerful tools for litigators in the proper case.