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The POWER of SLAPP

8 Reasons to take SLAPP very seriously

1. MANDATORY ATTORNEY’S FEES TO PREVAILING DEFENDANT ONLY: Defendants prevailing on a SLAPP motion (including any subsequent SLAPP appeal) are entitled to a mandatory award of reasonable attorney’s fees at full fair market value - doubled in cases where the defense is conducted on a contingent fee basis. [CCP § 425.16, subd. c]. Ketchum v. Moses (2001) 24 Cal.4th 1122. Typical fee awards range between $50,000.00 and $100,000.00. Some SLAPP fee awards have exceeded $300,000.00. See Metabolife v. Wornick (S.D. Cal. 2002) 213 F.Supp.2d 1220. Plaintiff cannot recover fees unless the SLAPP motion is shown to be frivolous. [CCP § 425.16, subd. (c)]

2. DEFENDANT HAS AN IMMEDIATE RIGHT OF APPEAL FROM ORDER DENYING A SLAPP MOTION [CCP 425.16, subd. j] The trial court proceedings are automatically stayed pending appeal as to each cause of action appealed. [CCP § 916].

3. AUTOMATIC STAY ON ALL DISCOVERY - Once the special motion to strike (SLAPP motion) under CCP § 425.16 has been filed, all discovery is automatically stayed in the action until the motion is heard. There is a very technical exception where the plaintiff is requried to file a noticed motion with an order shortening time to obtain limited and specified discovery prior to hearing on the motion. [CCP § 425.16, subd. (g)]

4. EVIDENTIARY BURDEN ON SLAPP MOTION IS MORE ONEROUS THAN MSJ : Once the defendant makes a prima facie showing that the lawsuit arises from protected speech or petition activity, the burden shifts to plaintiff to produce competent admissible evidence on each essential element of each claim with little or no discovery within 60 to 90 days after the complaint is filed. Wilcox v. Superior Court (2nd Dist. 1994) 27 Cal.App.4th 809, 820-824. Complaint must also survive demurrer and be legally sufficient without amendment in order to defeat an anti- SLAPP motion.

5. NO LEAVE TO AMEND ON SLAPP MOTION: Once the defendant files an anti-SLAPP motion, plaintiff cannot amend the complaint (i.e. court cannot grant leave to amend). The SLAPP motion must be evaluated based on the complaint as originally drafted. [Simmons v. Allstate (3rd. Dist. 2001) 92 Cal.App.4th 1068, 1073-1074].

6. PLAINTIFF CANNOT EVADE SLAPP FEES BY WITHDRAWING OR DISMISSING ACTION AFTER SLAPP MOTION HAS BEEN FILED:
If Plaintiff dismisses action either with or without prejudice in response to a SLAPP motion, the court is required to hear the motion on the merits and determine the prevailing party for purposes of awarding attorney’s fees and costs. Liu v. Moore (2nd Dist. 1999) 69 Cal.App.4th 745, 749-752.

7. DEFENDANT ENTITLED TO COLLECT SLAPP FEE AWARDS WHILE PLAINTIFF'S APPEAL IS PENDING UNLESS PLAINTIFF PUTS UP A BOND. Dowling v. Zimmerman (4th Dist. 2001) 85 Cal.App.4th 1400, 1426-1434. Mr. Moneer represented the prevailing defendants in Dowling.

8. SLAPP THRESHOLD ANALYSIS IS NOVEL AND EXCEEDINGLY COMPLEX: Since the anti-SLAPP law was first enacted in 1993, it has been interpreted by over 130 published appellate cases, including 7 from our High Court. The statute has also been amended three times. Virtually any speech or petition based civil cause of action can qualify for treatment under the anti-SLAPP statute except those falling under exceptions specifically delineated in CCP § 425.16, subd. (d) and CCP § 425.17. See infra.

 

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Types of claims "typically" subject to anti-SLAPP scrutiny.