Did The Fifth District Just Misapprehend the “Minimal Merit” Prong of The Anti-SLAPP Statute?

(Oakland, CA, March 1, 2015)  A special motion to strike under Code of Civil Procedure section 425.16, commonly known as the Anti-SLAPP statute, is a defense tool to achieve an early dismissal of a meritless lawsuit.  If a defendant shows a case arises from the plaintiff’s rights of petition or free speech, a plaintiff can avoid dismissal of her case only by showing it has “minimal merit.”  On February 20, 2015, the Fifth District Court of Appeal determined that a plaintiff’s defamation causes of action had minimal merit based solely on the plaintiff’s allegations that the defendant’s statements were false.  In the Court’s words:

[the plaintiff] alleges these statements are false.  Therefore, [the plaintiff] has established that his defamation claims have minimal merit.

 Slip Op. at 14.  The case is Grenier v. Taylor, F067263 (Feb. 20, 2015).  A copy of the opinion is available here.

The Fifth District’s reasoning in Grenier v. Taylor runs against settled authority – authority cited in the opinion itself – that “a plaintiff cannot simply rely on his or her pleadings, even if verified.” Instead, “the plaintiff must adduce competent, admissible evidence.”  Slip Op. at 7.  The Fifth District’s holding that the case has minimal merit because the plaintiff alleges it does apparently allows a plaintiff to defeat a special motion to strike based solely on the strength of her own allegations.  The conclusion is error.

  In fairness, the wording may have been loose.  Although it is not clear from the opinion itself, the plaintiff may have submitted a declaration or other admissible evidence showing the alleged statements were false.  If so, the statement should read “the plaintiff swore these statements are false.”  If so, the opinion should be amended to alter this language.  Alternatively, the Supreme Court should take it up on review and issue a summary decision remanding it for reconsideration in light of this error.  Alternatively, the opinion should be de-published. 

John Claassen is an experienced Anti-SLAPP litigator.  He practices from the offices of Claassen, P.C. in Oakland, California.  For more information about his firm, please click here.  While this blog entry is published for informational purposes, portions of this blog post may constitute "communications" within the meaning of California Rule of Professional Conduct 1-400.  Thus, as a possible "Advertisement" it is not intended to constitute legal advice.  Similarly, no statement made in this blog post is intended as a guarantee, warranty, or promise about the outcome of any litigation matter taken on by the firm.  This Advertisement is not intended for any matter that would require the rendition of legal services outside of the State of California or under the laws of any jurisdiction outside of the State of California. Copyright 2015.  All rights reserved.