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Checklist: Does the Anti-SLAPP Statute Apply?

533402213An anti-SLAPP motion to strike is generally available when one of the causes of action in a case is based on an act of a person in furtherance of the person’s constitutional right of petition or free speech in connection with a public issue. CCP §425.16(b)(1). That may sound straightforward, but it can actually be tricky to determine if the statute applies to a particular cause of action you want to attack. Here’s a handy checklist to take you through the determination of whether an anti-SLAPP motion may be on the table.

__   1.  Is the cause of action based on a written or oral statement of your client? If the answer is “no,” skip to Question 12. If “yes,” go to Questions 2–5.

__   2.  Was the written or oral statement made before a legislative proceeding?

__   3.  Was the written or oral statement made before an executive proceeding?

__   4.  Was the written or oral statement made before a judicial proceeding?

__   5.  Was the written or oral statement made before any other official proceeding authorized by law?

A “yes” answer to Question 1, and to any of Questions 2–5, places the cause of action within the statute based on the right to petition and/or free speech, and the Part One burden has been met, unless the commercial speech or public interest exemption applies. Go to Questions 14–23.

If the answer to Question 1 is “yes” but the answer to Questions 2–5 is “no,” go to Questions 6–9.

__   6.  If not made before any of the proceedings in Questions 2–5, was the written or oral statement made “in connection with an issue under consideration or review by a legislative body”?

__   7.  Or, was the written or oral statement made “in connection with an issue under consideration or review by an executive body”?

__   8.  Or, was the written or oral statement made “in connection with an issue under consideration or review by a judicial body”?

__   9.  Or, was the written or oral statement made “in connection with an issue under consideration or review by any other official proceeding authorized by law”?

A “yes” answer to Question 1 and to any of Questions 6–9 places the cause of action within the statute based on the right to petition and/or free speech and the Part One burden has been met, unless the commercial speech or public interest exemption applies. Go to Questions 14–23.

If the answers to Questions 2–9 are “no,” you must determine if the statute applies based on free speech or conduct. To do so based on free speech, the answer to Question 1 still must be “yes.” Then ask the following questions:

__   10.  Was the written or oral statement made in a place open to the public or in a public forum?

__   11.  If so, was it made in connection with an issue of public interest?

If the answer is “yes” to Questions 1, 10, and 11, the statute applies to the cause of action based on free speech and the Part One burden has been met, unless the commercial speech or public interest exemption applies. Go to Questions 14–23.

If the cause of action you are seeking to challenge is not based on a written or oral statement, but is based on “conduct,” ask the following questions:

__   12.  Is the cause of action based on the conduct of your client that was “in furtherance of the exercise of the constitutional right of petition or … free speech”?

__   13.  Was the conduct in connection with a public issue or an issue of public interest?

A “yes” answer to Questions 12 and 13 places the cause of action within the statute based on “conduct” and the Part One burden has been met, unless the commercial speech or public interest exemption applies. Go to Questions 14–23.

Commercial Speech Exemption

__   14.  Is the defendant primarily engaged in the business of selling or leasing goods or services?

__   15.  Were the defendant’s statements or conduct representations of fact about the defendant’s or a competitor’s business operations, goods, or services made for the purpose of obtaining approval for, promoting or securing sales or leases of, or commercial transactions in, the goods or services?

__   16.  Was the defendant’s intended audience for the statements or conduct an actual or potential buyer or customer or person likely to repeat the statement to an actual or potential customer?

If the answer is “yes” to Questions 14–16, the commercial speech exemption applies, which removes the cause of action from the anti-SLAPP statute, unless an exception to the exemption exists. Go to Questions 21–23.

Public Interest Exemption

__   17.  Was the action brought solely in the public interest or on behalf of the general public?

If the answer to Question 17 is “yes” go on to Question 18. If the answer is “no,” the Public Interest Exemption does not apply.

__   18.  Does the plaintiff seek relief that is not greater than or different from relief sought by the general public or class of which plaintiff is a member?

__   19.  Does the action seek to enforce an important right affecting the public interest, and would it confer a significant benefit (pecuniary or nonpecuniary) on the general public or a large class of persons?

__   20.  Is private enforcement necessary, and does it place a disproportionate financial burden on the plaintiff in relation to plaintiff’s stake in the matter?

If the answer to questions 18–20 is “yes,” the Public Interest Exemption applies and renders the anti-SLAPP statute inapplicable, unless an exception to the exemption exists. Go to Questions 21–23.

Exceptions to the Exemptions

__   21.  Is the defendant a person enumerated in Article 1, Sec. 2, subd. B of the California Constitution, a news source under Evid C §1070, engaged in dissemination of ideas or expressions in books or academic journals while engaged in gathering, receiving, or processing information for communication to the public?

__   22.  Is the cause of action based on the creation, dissemination, etc., of dramatic, literary, musical, political, or artistic work?

__   23.  Is the defendant a nonprofit organization that receives more than 50 percent of annual revenues from federal, state, or local government grants, awards, etc.?

If the answer to Question 21, 22, or 23 is “yes,” the exception to the exemptions apply, meaning the exemptions do not apply and the Part One burden has been met.

Is that clear? Get detailed explanations of all of these questions and guidance on anti-SLAPP motion procedures in CEB’s California Civil Procedure Before Trial, chap 24A and Making and Opposing Special Motions to Strike Under the California Anti-SLAPP Statute (Action Guide).

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Responses

  1. […] Checklist: Does the Anti-SLAPP Statute Apply? […]

  2. […] Checklist: Does the Anti-SLAPP Statute Apply? […]

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