Service of an Arrest Warrant by Sheriff Deputies Is Not Activity Protected by the Anti-SLAPP Statute

(Oakland, CA, April 25, 2015)  A special motion to strike under California Code of Civil Procedure section 425.16, commonly known as the Anti-SLAPP statute, is a defense tool that is used 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.”  A prevailing defendant is entitled to an award of attorney’s fees.

On April 22, 2015, the Fourth District Court of Appeal affirmed the denial of an Anti-SLAPP motion brought by sheriff deputies who allegedly made defamatory statements about the plaintiff while serving an arrest warrant on the plaintiff’s daughter in a misdemeanor proceeding.  The deputies allegedly told the plaintiffs’ tenants that “everyone” in plaintiff’s residence was a “liar” and “criminal.”  The plaintiff’s complaint asserted causes of action styled “illegal search and seizure,” “abuse of powers,” and defamation, among seven others.  The case is Anderson v. Geist, et al., E058139 (Apr. 22, 2015).

In affirming the denial of the defendants’ Anti-SLAPP Statute, the Fourth District held that the defendants did not meet their initial burden because executing an arrest warrant is not an exercise of the deputies’ rights but rather the performance of a mandatory duty.  The court explained:

At base, the execution of a warrant is not an exercise of rights by the peace officer; it is the performance of a mandatory duty, at the direction of the court. (See Barnett v. State Farm General Ins. Co. (2011) 200 Cal.App.4th 536, 546 [“‘A search warrant is not an invitation that officers can choose to accept, or reject, or ignore, as they wish, or think, they should. It is an order of the court.’”].) Because peace officers have no discretion in whether or not to execute a warrant issued by the court, it seems unlikely that a lawsuit asserting claims arising from such activity could have the chilling effect that motivated the legislature to adopt the anti- SLAPP statute, or that extending protections of the anti-SLAPP statute to such activity would serve the statute’s goals. (See § 425.16, subd. (a).)

            The court also rejected the defendants’ contention that their allegedly defamatory statements to tenants were protected by the Anti-SLAPP Statute.  It reasoned that the statutory language “in connection with litigation” implies that that challenged statements must be aimed to achieve the objects of the litigation and nothing in the record supported the defendants’ arguments that the alleged statements helped achieve the objects of the misdemeanor proceeding against the plaintiff’s daughter.

            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.

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.