In 1992, California enacted the anti-“SLAPP” (strategic lawsuits against public participation) statute to combat “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”[1]  By definition, a SLAPP suit is an abuse of the judicial process — the plaintiff does not expect to prevail in the lawsuit but rather initiates civil litigation for the purpose of punishing or deterring acts of public engagement.[2]  For example, a real estate developer may sue a citizen speaking out against a planned real estate development for defamation even though the statements are true.  In a SLAPP suit the plaintiff “wins” by merely litigating the claim, forcing the defendant[3] to incur legal costs and to devote time defending the lawsuit, and possibly intimidating others in the process. The anti-SLAPP statute gives defendants a procedural mechanism to nip these bad-faith actions in the bud.  Within sixty days of the service of the complaint,[4] a defendant may file a special motion to strike, also known as an “anti-SLAPP motion.”  The court decides an anti-SLAPP motion by applying a two-step analysis.[5]  First, the court examines whether the defendant has demonstrated that the plaintiff’s claims[6] target “protected activity,” i.e. speech or conduct related to the political or judicial process.[7]  If the defendant makes this threshold showing, then the court moves to the second step.  The burden then shifts to the plaintiff to offer competent evidence that establishes a “probability” that it will prevail in its claims.[8] The anti-SLAPP statute contains several features that favor the defendant.  First, discovery is automatically stayed upon the filing of the anti-SLAPP motion.[9]  The stay protects a defendant who would otherwise be forced to engage in potentially expensive and time-consuming discovery.  As discussed below, a court may allow discovery necessary to oppose the motion but the onus is on the plaintiff to prove “good cause.”[10]  Second, the anti-SLAPP statute awards attorneys’ fees and costs to the prevailing defendant.[11]  A prevailing plaintiff, by contrast, may recover its fees and costs only if it can be shown that the motion was “frivolous.”[12]  Third, if the trial court denies the anti-SLAPP motion, the defendant has an immediate right of appeal.[13]  A defendant enjoys no such right when a court overrules a demurrer or denies a motion to strike.[14]  By appealing, a defendant who has been subjected to a SLAPP suit may continue to avoid litigating the case until the court of appeal affirms the trial court’s denial of the anti-SLAPP motion. Unfortunately, like many laws with noble intentions, the anti-SLAPP statute can be abused.  Of course, in most cases, there is little risk that a complaint will draw an anti-SLAPP motion.  Personal injury, breach of contract and most business tort causes of action, for example, have nothing at all to do with free speech or petitioning the courts.  But in other cases, “protected activity” may be involved — if only peripherally — in the events giving rise to the action.  For example, a state employee’s discrimination claim may involve comments made during the state’s official performance evaluation process.  The communications among the reviewers during the deliberation are protected, but the alleged discrimination is not.  Nonetheless, if the employer files a motion to strike arguing that the discrimination lawsuit is a SLAPP case, the employee may be stuck litigating this issue for years.  (This is essentially what happened in the Park case, discussed below.) So what is a plaintiff to do?  Notwithstanding some grumbling by federal courts,[15] the anti-SLAPP statute is probably here to stay.  There are, however, some steps that can be taken to avoid an anti-SLAPP, or at least ameliorate the impact.  These might be thought of as anti-anti-SLAPP measures.

1. Draft the pleading to make it clear that the claims do not arise from protected activity.

The first prong of the anti-SLAPP motion requires the defendant to establish that the plaintiff’s claims arise from protected activity,[16] i.e. acts “in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”[17]  The best way to discourage an anti-SLAPP motion is to frame the plaintiff’s claims in a way that forecloses any possible argument that the claims arise from protected activity. Although anti-SLAPP motions have been popular for 25 years, the courts continue to grapple with the meaning of “arising from protected activity.”  In Park v. Board of Trustees of the California State University, the California Supreme Court sought to clarify the “ongoing uncertainty over how to determine when a cause of action against a person arises from that person’s protected activity.”[18] The plaintiff, a tenure-track assistant professor, asserted claims against the California State University (the “University”) for employment discrimination.[19]  The University responded with an anti-SLAPP motion, arguing that the lawsuit arose from the University’s protected official communications made during the tenure decision-making process.[20]  The University’s central argument was that its action (denying tenure) and its protected speech (communications made during tenure review) were “intertwined and inseparable.”[21]  The Supreme Court rejected this argument.  As the Court explained, “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”[22] But where Park struck a blow to defendants seeking to broaden the reach of the anti-SLAPP statute, Okorie v. Los Angeles Unified School Dist. can be seen as a counterbalance.[23]  Okorie involved an employment discrimination claim brought by a school teacher.[24]  The complaint alleged that the administration reassigned him to the Educational Service Center, also known as “teacher jail.”[25]  But the complaint also sought redress for the administration’s “meritless write ups” and the school district’s investigation of child molestation allegations against him.[26] The court of appeal affirmed the trial court’s granting of the anti-SLAPP motion.[27]  In so doing, the court approved the use of the “principal thrust or gravamen” analysis as a “viable tool by which to assess whether a plaintiff’s claim arises out of the protected activity.”[28]  The court held that even if part of the plaintiff’s claim involved adverse employment actions by the defendant, the “gravamen” of the case was the teacher’s allegations about protected investigations and evaluation assessments.[29]  Park, the court reasoned, was distinguishable because the gravamen of the professor’s claim was the denial of his tenure and not what they said about him in his evaluation.[30] Plaintiffs should heed Park and Okorie when drafting the pleading.   Park provides a blueprint for what the complaint should say.  “This case arises out of ______,” with the blank filled in with a pithy summary of the wrongful conduct distinct from speech or other protected activity.  For example: “This case [or claim] arises out of the defendant’s termination of the plaintiff in retaliation for his reporting of the defendant’s illegal conduct, in violation of Labor Code section 1102.5.” Park and Okorie also teach what the complaint should not say.  The complaint should not include allegations that can be construed as targeting the exercise of speech or petition rights.  If part of the plaintiff’s story involves the defendant’s protected activity, such as statements made during a public meeting, the complaint should take pains to explain that the speech itself is not the target of the lawsuit but rather constitutes corroborative evidence of the theory of liability.  Or that the speech itself is not actionable, but represents one of the events in a chain that led to the non-protected activity, e.g. the retaliatory termination. Importantly, the plaintiff may have only one shot at framing the claims correctly.  Courts typically do not permit amendment of the complaint after the anti-SLAPP motion is filed.[31]  And while careful drafting of the complaint does not guarantee that the defendant will decide not to file an anti-SLAPP motion, or even that the trial court will find that the defendant has not met the first anti-SLAPP prong, these pleading practices will improve the plaintiff’s odds.

2. Move for anti-SLAPP discovery.

As discussed, the filing of an anti-SLAPP motion immediately stays discovery.  That means a plaintiff may have to wait a long while to develop his case while the evidence grows stale and the timeline for obtaining a judgment moves farther into the future. The trial court may, however, permit “specified discovery” if the defendant can establish “good cause.”[32]  “Good cause” exists if the defendant has exclusive possession of the evidence that would enable the plaintiff to satisfy the second anti-SLAPP prong of probability of plaintiff prevailing on the merits.[33] But a plaintiff seeking anti-SLAPP discovery may face an uphill battle.  Courts may be reluctant to lift the statutorily-imposed discovery stay in light of the statute’s goal of protecting SLAPP defendants.  The anti-SLAPP discovery motion necessarily must be heard before the anti-SLAPP motion, so it is unlikely the judge will have read any of the anti-SLAPP motion papers, let alone formed an opinion on whether the anti-SLAPP motion has merit, by the time the Court decides the motion for discovery.  Without a strong sense of the relative merits of the anti-SLAPP issues, a judge may be reluctant to disrupt the natural order and allow discovery.  Moreover, all anti-SLAPP motions involve a test of the merits so the notion that the plaintiff must already have the necessary evidence is, in a sense, already built into the statute. The plaintiff can improve the chances of a successful motion by submitting evidence that explains the unusual circumstances that justify the need for discovery before the anti-SLAPP motion is heard.  For example, if the case turns on a theory that the defendant has engaged in a secret scheme, it would be manifestly unfair to strike plaintiff’s case because the plaintiff did not have sufficient evidence of the scheme.  A motion that shows that the defendant alone possesses the evidence needed to prove the claims at issue will be persuasive.[34] The plaintiff should also be judicious in how much discovery it requests.  Overreach may cause the judge to deny the whole motion outright, whatever the merits.  The plaintiff will have a better chance of obtaining discovery by limiting requests to narrow categories of documents and targeted depositions. Finally, the motion should be made as promptly as possible.  The statute requires a noticed motion,[35] which means the plaintiff needs to get it on the docket as soon as possible to be heard in time.  It may be necessary to make an ex parte application to advance the date of the anti-SLAPP discovery motion or to continue the hearing on the anti-SLAPP motion. If the court grants discovery, the plaintiff may find itself in a better position than if an anti-SLAPP motion was not filed.  The plaintiff will be able to take court-ordered, expedited discovery on the key issues of the case.  Of course, the plaintiff must then defeat the anti-SLAPP motion.

3. Seek an order allowing the “non-SLAPP” claims to move forward.

If the trial court denies the anti-SLAPP and the defendant appeals, all is not lost.  The stay applies only to those causes of action subject to the motion to strike.[36]  If the defendant did not move to strike all of the causes of action, the plaintiff should seek clarification from the court at the Case Management Conference (usually held after the disposition of the anti-SLAPP motion, but sometimes on the same day as the anti-SLAPP hearing) that the rest of the case can move forward.

4. Move for calendar preference.

As noted, an anti-SLAPP motion has the potential to put a case on ice for a long while.  Because California superior courts’ dockets are jammed, an anti-SLAPP motion might not be heard for six months or more (notwithstanding the statute’s mandate that the motion be heard within 30 days of filing) and an appeal may take more than a year to be adjudicated. To mitigate the resulting delay, a plaintiff may make a motion for calendar preference with the court of appeal.[37]  Although there is no statutory right to calendar preference for an appeal of an order on an anti-SLAPP motion, appellate courts also have discretion to grant a motion for appellate calendar preference upon any “appropriate showing” (so long as not conflicting with statutes or judicial council rules).[38]  Good cause may be shown by establishing that the delay is causing measurable prejudice to the plaintiff.  Because the courts have recognized that the anti-SLAPP motion has been deployed as a delay tactic,[39] the courts of appeal are generally receptive to requests to expedite the process, especially where the defendant can show that the merits of the plaintiff’s appeal are dubious. Appellate calendar preference is obtained by “promptly” filing a motion in the appellate court.[40]  If the ground for preference arises while the appeal is pending, the motion should be made “as soon as the ground for preference arises.”[41] To sum up, the anti-SLAPP statute gives defendants a powerful weapon to counter malicious SLAPP suits.  Alas, the anti-SLAPP statute also provides opportunistic defendants with the means to stop a legitimate, non-SLAPP suit in its tracks.  Absent reform of the anti-SLAPP statute, there is no silver bullet to protect against a meritless anti-SLAPP motion.  The tactics discussed above, however, may help the defendant make the best of a bad situation or, at a minimum, give the defendant the small satisfaction of fighting back. --------------------------------------------------- [1] Cal. Code Civ. Proc. § 425.16(a). [2] Importantly, however, a moving party is not required to prove an intent to chill speech in order to prevail on an anti-SLAPP motion.  Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4^th 53, 68 (2002). [3] This article uses the term “defendant” but a cross-defendant may also file an anti-SLAPP motion in response to a cross-complaint.  Cal. Code Civ. Proc. § 425.16(h). [4] Cal. Code Civ. Proc. § 425.16(f). [5] Park v. Board of Trustees of Calif. State Univ., 2 Cal. 5^th 1057, 1061 (2017). [6] An anti-SLAPP motion need not dispose of the entire lawsuit; like a demurrer or traditional motion to strike, a defendant may move to dismiss a single cause of action, or multiple causes of action.  See Cal. Code Civ. Proc. 425.16(b)(1) (“A cause of action…shall be subject to a special motion to strike…”) [7] Park, 2 Cal. 5^th at 1061. [8] Id. [9] Cal. Code Civ. Proc. § 425.16(g). [10] Id. [11] Cal. Code Civ. Proc. § 425.16(c)(1). [12] Id. [13] Cal. Code Civ. Proc. § 425.16(i). [14] See, e.g., City of Stockton v. Superior Court (Civic Partners Stockton, LLC), 42 Cal. 4^th 730, 746-47 (2007) (noting that the overruling of a demurrer may be challenged only by writ relief). [15] See Travelers Cas. Ins. Co. of America v. Hirsch, 831 F. 3d 1179, 1182 (2016) (Kozinski, C.J., concurring) (joining decision applying anti-SLAPP law but venting that “[t]hese interloping state procedures have no place in federal court.”) [16] Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002). [17] Cal. Code Civ. Proc. § 425.16(b)(1). [18] Park, 2 Cal. 5^th at 1062 (internal quotations omitted). [19] Id. at 1061. [20] Id. [21] Id. at 1069. [22] Id. at 1060; see also Bonni v. St. Joseph Health System, 13 Cal. App. 4^th 851, 855 (2017) (citing Park and holding that a whistleblower claim arose from employer’s conduct and not the peer-review process). [23] 14 Cal. App. 5^th 574, 222 Cal. Rptr. 3d 475, 481 (2017). [24] Id. [25] Id. at 482. [26] Id. [27] Id. at 497. [28] Id. at 488. [29] Id. at 491-92. [30] Id. [31] See Simmons v. Allstate Ins. Co., 92 Cal. App. 4^th1068, 1074 (2001) (holding that amendment of pleading after anti-SLAPP motion was filed is not permissible); but see Nguyen-Lam v. Cao, 171 Cal. App. 4^th 858, 871 (2009) (allowing amendment to pleading that addressed the “merits” of the claim but not whether the targeted activity was protected conduct). [32] Cal. Code Civ. Proc. § 425.16(g). [33] See Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal. App. 4th 855, 868 (1995); Garment Workers Center v. Superior Court (Fashion 21, Inc.), 117 Cal. App. 4th 1156, 1162 (2004). [34] On the other hand, a plaintiff should be mindful not to suggest that it has no evidence to support its claims.  If the plaintiff had no evidence, it probably should not have filed the case in the first place.  Also, if the motion is denied, then the plaintiff is vulnerable to the defendant’s argument on the second anti-SLAPP prong that the plaintiff already admitted that it had no supporting evidence. [35] Cal. Code Civ. Proc. § 425.16(g). [36] Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4^th 180, 195 (2005) [37] Cal. Rule Ct. 8.240. [38] Warren v. Schecter, 57 Cal. App. 4th 1189, 1199 (1997). [39] Varian Medical Systems, Inc., 35 Cal. 4^th at 195 (“ some anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial”). [40]Cal. Rule Ct. 8.240. [41] Cal. Rule Ct. 8.240, Adv. Comm. Comment.