How to Win Big and Early: ANTI-SLAPP Motions

Author: Robert Tyson

In a huge victory for Tyson & Mendes on behalf of their clients, the Ventura County Superior Court granted a dispositive Anti-SLAPP (Strategic Lawsuit Against Public Participation) motion dismissing defamation claims arising from a defendant’s speech to his primary care physician about the treatment and insurance/billing practices of the specialist doctor to whom the patient was referred by that primary care physician.

The crux of a defendant’s Anti-SLAPP motion is that by filing the complaint (in this case defamation related causes of action), plaintiff was improperly attempting to chill the defendant’s first amendment rights to free speech in connection with a public issue. Anti-SLAPP motions are usually more expensive than conventional challenges to a complaint because they are typically factually and legally complex, as discussed in more detail below. However, they are a huge success because they are dispositive and attorney’s fees can be recovered from plaintiff.
Below is an overview of the legal requirements and analyses that are necessary to prevail on an anti-SLAPP motion.

  1. Based on Evidence

In contrast to demurrers in California that must be based upon the allegations of the complaint, which are presumed to be true, Anti-SLAPP motions are based upon evidence. This requires investigation as to the evidence prior to any discovery and obtaining an admissible form of the evidence to support the Anti-SLAPP motion. In addition, the defendant must respond to the evidence that plaintiff submits in opposition.

  1. In Depth Two Prong Analysis

Anti-SLAPP motions require an in-depth two prong analysis, with each of the prongs involving multi-step analyses.

 FIRST PRONG: Constitutional Arguments

First, a moving defendant must make a prima facie showing the challenged complaint interferes with the defendant’s constitutional rights, i.e. the right to petition or the right to free speech.

The constitutional first prong of the analysis can itself involve complex multi-step analyses. First, defendant must show the allegations arise from his/her constitutionally protected speech or petition, the right to which is guaranteed by the Constitution.

Second, the plaintiff must show that the speech or petition is in connection with a public issue.

The Anti-SLAPP statute establishes four categories of conduct for meeting these requirements:

  • (i) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or another official proceeding authorized by law;
  • (ii) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  • (iii) any writing or oral statement or writing made in place open to the public or public forum in connection with an issue of public interest; or
  • (iv) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

SECOND PRONG: No Probability Prevail

The second prong requires that the moving defendant convince the court that there is not a probability that plaintiff will prevail on the causes of action alleged (burden of proof on plaintiff). To establish lack of probability of prevailing requires demonstration that plaintiff’s complaint lacks legal sufficiency or is not supported by a prima facie showing of the facts.

ABOUT THE AUTHOR:  Bridgette Webster is a 2002 graduate of U.C. Hastings College of the Law. Her practice focus is on defense of high-exposure medical malpractice cases. She is currently the head of Heath Care Practices at Tyson & Mendes, LLP. Contact her at bwebster@tysonmendes.com.

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