Sometimes The Little Guy Can’t Catch A Break Under The Anti-SLAPP Statute.

A david took on a goliath of sorts in the First District Court of Appeal last week.  After the First District ordered the lower court to dismiss the case as a SLAPP (strategic lawsuit against public participation), the david lost big.  The case is Barker v. Fox and Associates.

Motions brought under California’s Anti-SLAPP statute were not originally intended to pummel the little guy.  Rather, Code of Civil Procedure section 425.16 was meant as a powerful tool to protect him from moneyed interests who asserted frivolous lawsuits to silence opposition.

The Anti-SLAPP statute works by imposing a stay on discovery and requiring the plaintiff to offer evidentiary and legal support for her claims at the start of a lawsuit.  Even if the motion is denied, a defendant can appeal immediately.  Thus, even if the plaintiff ultimately wins the motion, a case might be sidetracked for many months while the case is under review.  If the defendant wins, she is entitled to a non-discretionary award of attorney’s fees.  Awards given under the statute range from tens of thousands to even hundreds of thousands.

The archetypical SLAPP is a lawsuit by a rich developer suing a community activist who speaks out against a development.  While over time the statute has broadened in scope, the statute focuses on whether the activity of the defendant that is challenged by the plaintiff arises from activity protected by the First Amendment.

Just how the Barker case resulted in a big loss for the wrong person serves as a good reminder to anyone considering a lawsuit to vindicate her reputation.  In California, you need to be really careful. 

While the Anti-SLAPP statute mostly applies to situations involving public figures or issues of public concern, it can also apply to situations that are not so obvious.  It can apply to speech in connection with run of the mill lawsuits even between parties who are not rich, not noteworthy, and not speaking about big issues.  It can apply in HOA settings.  It can apply to on-line reviews about businesses.  It can apply if it concerns a matter of public interest even if the situations lack news coverage.

Assuming that a defendant can show the Anti-SLAPP statute applies, offering evidence to support a defamation claim without having conducted discovery can often be challenging.  In some situations, a plaintiff has to prove that the defendant lacked reasonable grounds for believing a statement was true or did not in fact believe a statement was true.  Similarly, California has a defense, known as the “common interest” privilege, that requires similar proof.  The common interest privilege applies to statements made between persons “interested in them” (persons providing on the job performance reviews).  Without discovery, plaintiffs are often left with conjecture or hearsay as to what the defendant believed or on what a defendant based his statement.

 In Barker, the plaintiff was an in-home caregiver for an elderly person.  After a conservatorship was established, a nurse case management company took over the management of her care.  Plaintiff continued to working alongside the case management company’s nurses along with other previous caregivers.  One day, the elderly person was found bruised and emotionally distraught while in the care of a nurse hired by the case management company.

The company’s CEO responded to the situation by writing an e-mail to the conservator, the patient’s children, and others.  The letter that suggested the plaintiff rather than the company nurse was responsible for what happened.  Specifically, the CEO asserted that the plaintiff failed to provide an adequate orientation to the company nurse.  The plaintiff was then placed on probation, which was followed by his resignation.

Upset by the reputational harm he suffered, the plaintiff filed a complaint.  The complaint alleged causes of action for libel per se, intentional infliction of emotional distress, and negligent infliction of emotional distress.  The defendants filed an Anti-SLAPP motion in response.  The plaintiff did not argue that the Anti-SLAPP statute did not apply to the situation.  He only argued that his case had some merit.  The trial court agreed with the plaintiff.  The defendants appealed.

The Court of Appeal saw things differently.  Reversing, it offered several reasons for dismissing the case, including the following:

  1. The plaintiff waived an argument that the Anti-SLAPP Statute did not apply.
  2. The plaintiff’s complaint did not identify the statements that were allegedly defamatory.
  3. The e-mails on their face were not defamatory per se.  Thus, the plaintiff was required to plead and proof special harm.  The plaintiff never alleged or proved special harm.
  4. The common interest privilege in Civil Code section 47(c) applied to the e-mails.  Yet, the plaintiff offered no evidence of that the defendants felt ill-will towards them or believed the alleged statements were false.

Things arguably did not have to end this way.  The plaintiff might have avoided dismissal by arguing that the Anti-SLAPP statute did not apply.  The defendants only asserted that the statement was in connection with conservatorship proceedings and was thus protected.  Yet, the e-mail was a statement very much outside of an official proceeding covered by the Anti-SLAPP statute.  It concerned day-to-day care of a person rather than protected activity.  

The plaintiff may also have been able to avoid dismissal by asserting the argument for the first time on appeal.  Appellate courts typically allow the party defending an appeal to raise any argument that justify the trial court’s decision on the theory that it is the results that count, not necessarily the way the lower court arrived at the result. 

In any event, Barker serves to remind all potential plaintiffs that things can go seriously wrong.  You need to anticipate Anti-SLAPP motions.  You need to avoid alleging facts that make it apply where possible.  If it is not possible and you still want to bring the case, you need to ensure that your complaint is strong and the allegations have evidentiary support.  The plaintiff in Barker did not do this and suffered a painful loss as a result.

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.