Anti-SLAPP Law Does Not Require Intent to Chill Speech

Friday, August 30, 2002

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Anti-SLAPP Law Does Not Require Intent to Chill Speech—SC

By KENNETH OFGANG, Staff Writer/Appellate Courts

Defendants who claim lawsuits against them could squelch their exercise of First Amendment rights do not have to show that the plaintiffs had just that effect in mind in order to prevail under California’s “anti-SLAPP” law, the state Supreme Court ruled yesterday.

In a trio of cases that were argued in Los Angeles two months ago, the justices rejected arguments by plaintiffs who had their suits thrown out as “strategic lawsuits against public participation” under Code of Civil Procedure Sec. 425.16 that defendants should have to prove there was an intent to chill the exercise of free speech or petition rights.

“When on previous occasions we have construed the anti-SLAPP statute, we have done so strictly by its terms—and no reason appears why we should proceed otherwise in this case,” Justice Kathryn M. Werdegar wrote in the lead case, Equilon Enterprises, LLC v. Consumer Cause, Inc.. “Since section 425.16 neither states nor implies an intent-to-chill proof requirement, for us judicially to impose one, as Equilon urges, would violate the foremost rule of statutory construction.”

The 1992 anti-SLAPP law was originally conceived to protect activists and grassroots organizers who get sued by big businesses to short-circuit a costly trial if they can show the suit was brought in retaliation for exercising their rights to speak or to petition. If the judge finds the suit to be a SLAPP, the burden shifts to the plaintiff to show that there is a likelihood of prevailing at trial, otherwise the suit is dismissed and the defendant is entitled to an award of attorney fees.

PLF Joins ACLU

In the Equilon case, the justices sided with a broad array of amici in support of the defendants. The conservative Pacific Legal Foundation found itself on the same side of the issues as Attorney General Bill Lockyer, the California Newspaper Publishers Association, other media groups, the California Anti-SLAPP Project, and several ACLU affiliates and environmental organizations.

The California Chamber of Commerce and the Chemical Industry Council of California supported the plaintiff.

Equilon, the owner of several gas stations that may have been seeping pollutants into the groundwater, argued that its lawsuit to enjoin an environmental group from filing suit was not a SLAPP. Its only intent, the company said, was to obtain a judicial determination as to whether a Proposition 65 notice by Consumer Cause, Inc., was served on the proper parties and was sufficiently specific to support a claim.

But Werdegar, writing for a unanimous court, said that Equilon’s effort to impose a subjective intent element on anti-SLAPP motions was contrary both to the statutory language and to legislative intent.

She cited articles by University of Denver professors Penelope Canan and George W. Pring, who have studied the SLAPP phenomenon and coined the term in 1988. Pring and Canan have argued for a simple, objective definition as an essential means of fulfilling the purpose of anti-SLAPP legislation, Werdegar noted.

“Obviously, not only when a plaintiff intends to chill speech may the filing of a lawsuit have that result,” the justice reasoned.

Werdegar rejected the contention that applying the anti-SLAPP remedy to a suit that is brought without improper motive violates the plaintiff’s constitutional right to petition the courts.

“Contrary to Equilon’s implication, section 425.16 does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning,” the jurist wrote. “It subjects to potential dismissal only those causes of action as to which the plaintiff is unable to show a probability of prevailing on the merits.”

Cotati Sued

In the second suit, the owners of three mobile home parks in the small Sonoma County city of Cotati sued in federal court to block a rent control law, then the city sued in state court for declaratory relief. The park owners responded with a motion seeking to brand the state court action a SLAPP.

The trial judge agreed with them, but the Court of Appeal reversed.

Werdegar, writing for a four-justice majority, went further than she had in Equilon. Not only need a defendant not show that the plaintiff intended to create a chilling effect, she said, it need not prove that the suit had any such effect.

The justice ultimately sided with the plaintiff, however. The suit was not a SLAPP, she said, because it was not an action “arising from” the park owners’ exercise of their constitutional right to file the federal suit.

While the city’s acknowledged purpose in filing the declaratory action was to secure a more favorable forum for its claims, Werdegar said, the action “arose from the underlying controversy respecting the validity of City’s ordinance rather than from Owners’ federal lawsuit.”

Werdegar was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard and Carlos Moreno. Justice Janice Rogers Brown, joined by Justices Ming Chin and Marvin Baxter, concurred separately.

Brown agreed with Werdegar’s interpretation of the “arising from” requirement, but said the rest of the opinion was dicta and unnecessary to resolve the case.

In the most contentious case, a 4-3 majority rejected Brown’s warning that it was turning anti-SLAPP motions into “the latest form of abusive litigation” and held that the managers of an investment firm may have SLAPPed one of their independent trustees by suing him for filing counterclaims in an earlier suit.

Louis G. Navallier and Navallier Management, Inc. had sued Kenneth Sletten and other independent trustees in federal court after the trustees fired Navallier as manager of Navallier Series Fund.

The trustees later entered into an agreement setting forth terms for Navallier to return as investment advisor to the fund, pursuant to which the trustees executed a general release of claims against Navallier. But Sletten then filed counterclaims in the federal action, arguing that he had been defrauded into signing the release.

After successfully defending against the counterclaims, Navallier sued Sletten in San Mateo Superior Court, claiming that he had fraudulently declared his intent to be bound by the release.

That suit was a SLAPP, Werdegar said, unless Navallier shows a probability of winning, an issue the trial judge did not address. Werdegar said the suit arose from Sletten’s exercise of his right to file counterclaims.

Brown, joined by Baxter and Chin, contended that the case was similar to the mobile park case, and that the Superior Court suit arose from the internal dispute, not from the federal suit.

Werdegar responded in a footnote that Brown was arguing “confusedly.” The cases were different, she said, because Sletten was sued because of “a statement or writing made in connection with issues under consideration or review by a judicial body,” while the Cotati suit arose from the parties’ disagreement over rent control, “not from any statement or writing in connection with judicial proceedings.”

The cases are Equilon Enterprises, LLC v. Consumer Cause, Inc., 02 S.O.S. 4599; City of Cotati v. Cashman, 02 S.O.S. 4605, and Navellier v. Sletten, 02 S.O.S. 4610.