California's anti-SLAPP Law Clarified

State Supreme Court makes it easier to
avoid lawsuits meant to silence dissent

HARRIET CHIANG / SF Chronicle 30aug02

The California Supreme Court made it easier Thursday for citizens who speak out on public controversies to avoid lawsuits they say are intended to shut them up.

In three separate cases, the justices clarified the guidelines for using California's anti-SLAPP law, a powerful legal tool citizens can rely on to quickly get rid of retaliatory lawsuits.

SLAPP suits -- Strategic Lawsuits Against Public Participation -- originally were brought by government agencies, businesses and developers to entangle citizens in long and expensive litigation.

In Thursday's lead case, the justices ruled unanimously that citizens who rely on the anti-SLAPP law do not have to prove that the company suing them "intended to chill" their free speech rights.

INTENT UPHELD

Imposing that burden goes against the Legislature's intent in passing the 1992 law to protect public participation, said Justice Kathryn Mickle Werdegar in the court's opinion.

She said that requiring a judge to take the time to determine a company's motivations would eat up scarce court resources. "We are well advised not to upset the Legislature's carefully crafted scheme for disposing of SLAPP's quickly and at minimal expense to taxpayers and litigants," she wrote.

The court ruled in favor of a Southern California consumer group that claimed that Shell Oil and Texaco had sued them in retaliation after the consumer group accused them of pollution violations.

Consumer Cause had given the oil companies notice that they were suing under Proposition 65, the anti-toxics law requiring businesses with products containing unsafe chemicals to warn the public.

The oil companies responded with a lawsuit claiming that the consumer company didn't give them adequate notice.

A trial judge agreed with Consumer Cause that the oil company's lawsuit was a SLAPP suit and dismissed the oil companies' complaint. A state appeals court agreed and the state Supreme Court upheld the lower court rulings Thursday.

"The original intent of the law was to allow robust discussion without the threat of litigation," said state Attorney General Bill Lockyer, who as a state senator authored the 1992 anti-SLAPP law. "The court rulings recognize this and make clear litigation cannot be used to intimidate people into silence."

Ed Weil, a deputy attorney general who argued the case on behalf of the state, said it would be very difficult for citizens to prove that a company intended to chill their free speech rights by suing them -- "unless you have a plaintiff that's dumb enough to say it," he said.

Cameron Smyth, the West Coast spokesman for Shell Oil Products U.S., said the company's lawyers were still reviewing the decision.

DEFINING SLAPP SUITS

In the two other opinions, the court went into more detail in clarifying what qualifies as a SLAPP suit.

Originally confined to public controversies, the court expanded the reach of the law in 1999, ruling that an East Bay tenants rights group could use the law to dismiss a landlord's defamation suit.

Since then the anti-SLAPP law has been used by corporations, business partners and other private parties to fight off lawsuits.

But on Thursday, the high court set out a two-prong test to determine whether a lawsuit qualifies as a SLAPP. A SLAPP suit must "arise from" a citizen or group's protected speech, the court said. If the suit has any chance of succeeding, the justices added, it is not a SLAPP suit.

Relying on this criteria, the court ruled against mobile home park owners in Cotati who claimed they were victims of a SLAPP suit for challenging a local rent control law.

After the mobile home park owners sued in federal court to get rid of the law, the city filed its own complaint in Sonoma County Superior Court law to have the ordinance declared constitutional.

A trial judge threw out the city's complaint, finding that it was a SLAPP suit. But a state appeals court restored it.

The state Supreme Court agreed with the city. "The mere fact that an action was filed after a protected activity took place does not mean it arose from that activity," Werdegar wrote.

The city's suit arose from the controversy over the rent control law, the justices concluded, not the owner's federal lawsuit.

In the final opinion, the court dealt with a messy dispute between two business colleagues who accused each other of breach of contract. The court ruled that the final suit by one of the businessmen accusing the other of violating an agreement not to sue was a SLAPP suit.

R.A. Radford, a lawyer with the Pacific Legal Foundation, a Sacramento group that represented the mobile home park owners, criticized the court's interpretation of the anti-SLAPP law.

The court created a "bad rule" by requiring SLAPP suits to "arise from" the free speech activity, Radford said. "That's where all the confusion and litigation is going to be over the next XX years."