Avoid Malpractice by Spotting SLAPP issues Early On!

TYPES OF CLAIMS "TYPICALLY" SUBJECT TO ANTI-SLAPP SCRUTINY

1. MALICIOUS PROSECUTION - Jarrow Formulas v. La Marche (2003) 2003 DJDAR 9295 [Malicious prosecution always arises from protected petition activity and thus covered by SLAPP statute].

2. ABUSE OF PROCESS - Computer Xpress v. Jackson (4th Dist. 2001) 93 Cal.App.4th 993, 1005, 1008-1010, 1014-1015; Chavez v. Mendoza (4th Dist. 2001) 94 Cal.App.4th 1083, 1087-1091.

4. LITIGATION PRIVILEGE ACTIVITY UNDER CC § 47, SUBD.(b)
Briggs v. Eden Counsel for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115-1122; Equilon Enterprises LLP v. Consumer Cause, Inc. (2002) 29 Cal.4th 53; See also Dowling v. Zimmerman, supra, 85 Cal.App.4th at 1421-1422.

5. EVEN A SIMPLE BREACH OF CONTRACT OR DECLARATORY RELIEF ACTION MAY BE A SLAPP SUIT: Navellier v. Sletten (2002) 29 Cal.4th 82; Equilon Enterprises LLP v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.

6. ANY OTHER CIVIL CAUSE OF ACTION IN A COMPLAINT, CROSS-COMPLAINT, OR PETITION THAT ARISES FROM PROTECTED SPEECH OR PETITION ACTIVITY AS DEFINED IN SUBDIVISION (e) OF SECTION 425.16 [CCP § 425.16, SUBDS. (e),(h)]

7. NEW LAW EXEMPTS CERTAIN PUBLIC INTEREST SUITS AND SUITS BASED ON COMMERCIAL SPEECH ACTIVITY FROM ANTI-SLAPP SCRUTINY [CCP § 425.17 (FORMERLY SB 515)]: Most recently, a counterpart statute, CCP 425.17, became effective 1/1/04 and limits application of section 425.16 in certain public interest and commercial speech cases. The new law will apply to cases still pending as of 1/1/04. Robertson v. Rodriquez (1995) 36 Cal.App.4th 347.

Strategies: for the Plaintiff

SLAPP MALPRACTICE ISSUES FOR THE PLAINTIFF

1. Ideally, plaintiffs should identify all potential SLAPP issues prior to filing the complaint and fully inform the client of ALL potential consequences associated with filing a complaint containing arguable SLAPP allegations. At this point, the attorney can choose to draft the complaint in a way that eliminates SLAPP issues or advise the client that filing a SLAPPable claim involves high risk, onerous, lengthy, and EXPENSIVE procedural hurdles, and that supporting evidence needs to be produced up front. This practice will in most cases protect the attorney from exposure to a potential malpractice suit.

2. If SLAPP issues have been identified after the pleading has been filed, but before defendant files an anti-SLAPP motion, amending out all SLAPP allegations or dismissing the complaint with prejudice may be an acceptable way of avoiding anti-SLAPP treatment. BUT NO PUBLISHED CASE HAS SQUARELY DEALT WITH THIS ISSUE AS OF 02/01/04.

3. Once the defendant files a SLAPP motion, however, plaintiffs must take the opposition VERY SERIOUSLY and implement all available resources into successfully opposing the motion in the trial court. This means conducting thorough research into the body of over 130 published cases to support the argument that the claim does not arise from a protected SLAPP activity. It means also preparing a noticed motion for specified discovery and producing all available competent admissible evidence in support of all essential elements of each claim including causation and damages and evidence required to defeat any affirmative consitutional defenses. PLAINTIFF MUST, AT MINIMUM, RAISE A TRIABLE ISSUE OF FACT AS TO EACH ESSENTIAL ELEMENT OF EACH CLAIM.

Strategies: for the Defendant

SLAPP MALPRACTICE ISSUES FOR THE DEFENSE

1. As part of the duty of care and competence, defense counsel is required to screen every civil complaint and cross-complaint for potential SLAPP issues as soon it is served.

2. Failure to do so and advise the client of the option of filing a SLAPP motion can result in malpractice even if the complaint is ultimately dismissed on demurrer or MSJ!! How can this be? You have dismissed the lawsuit before trial and yet you could still be liable for malpractice. First, you may have waived your client's right to recover his attorney's fees and costs if you file a demurrer or MSJ when a SLAPP motion would have been appropriate. Secondly, your client's chances of obtaining complete or partial dismissal early in the lawsuit is maximized by the filing of a SLAPP motion with its automatic stay on discovery, immediate right of appeal, and the unavailability of leave to amend. Part of the attorney's duty of competence and fiduciary duties include using the most efficient means of achieving the client's litigation objective. Where SLAPP applies and the claim is meritless, filing a demurrer or MSJ is malpractice per se.

3. A practical example of this type of malpractice is when a defendant files a demurrer or MSJ to dismiss a complaint for malicious prosecution or a complaint for defamation based on statements made in court (i.e. litigation privilege activity under CC § 47, subd. (b). The defendant may ultimately prevail in getting the lawsuit dismissed regardless of whether he files a demurrer, MSJ, or a SLAPP motion. The pivotal difference is the fee award, the automatic stay on discovery, the immediate appeal right, and other procedural hurdles a SLAPP motion imposes on a plaintiff.

4. Timing/jurisdicational issues in filing SLAPP motions: Make sure that both time requirements for filing and service of a SLAPP motion are scrupulously honored under subdivision (f) of section 425.16.

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