ARTICLE:
CALIFORNIA’S ANTI-SLAPP STATUTE: A POTENT,
YET CONFOUNDING, WEAPON
By Brian D. Shaffer*
Lawsuits designed to chill the valid exercise of the constitutional right of free
speech or the right to petition, denominated as “strategic lawsuits against public
participation” (or “SLAPP” suits), have taken on increasing significance over
the last several decades. The classic example of a SLAPP suit is one filed by a
large business against local activists to halt or impede the activists’ political or
legal opposition to the company’s plans.The SLAPP plaintiff’s goal is not nec-
essarily to prevail, but to effectively silence the opposition by preventing them
from exercising their constitutional rights to speech and/or petition. The victim
of a SLAPP suit could resort to traditional remedies (e.g., malicious prosecu-
tion), but those remedies can be difficult and costly to obtain, leaving the
SLAPP victim with few viable options to prevent being essentially “muzzled” by
a richer and more powerful adversary.
In response to this significant problem, the legislature enacted Code of Civil
Procedure Section 425.16 in 1992 (the “anti-SLAPP” statute). The anti-SLAPP
statute provides a potent weapon to a victim of a SLAPP suit. The anti-SLAPP
statute allows a SLAPP defendant to file a special motion to strike very early in
the case to challenge the plaintiff’s claims on the merits. The recipient of an
anti-SLAPP motion must clear evidentiary hurdles and satisfy sometimes
amorphous legal standards simply to prevent dismissal of the case.
The nature of SLAPP litigation is dynamic and constantly evolving. On sev-
eral occasions over the past decades, this publication discussed and analyzed the
developing interpretations of the anti-SLAPP statute.1SLAPP issues have arisen
in contexts that appear far removed from any constitutional battle. While the
constitutional quandary posed by the classic SLAPP case described above makes
perfect sense, some litigants seem to be surprised that a seemingly private
dispute between two parties can be transformed into a complex struggle over
constitutional principles entailing broad public interest concerns.
Since the party losing an anti-SLAPP motion has the right of immediate ap-
peal, there is a large volume of anti-SLAPP appellate decisions. The breadth and
*Brian D. Shaffer is a litigation shareholder in the Walnut Creek office of Miller Starr
Regalia. He also contributes to the Remedies chapter of Miller & Starr,California Real Estate 4th.
MILLER & STARR REAL ESTATE NEWSALERT JULY 2017 | VOL. 27 | ISSUE 6
589K2017 Thomson Reuters
