CALIFORNIA SUPREME COURT CLARIFIES SCOPE OF ANTI-SLAPP STATUTE

In the last few weeks, the Supreme Court has issued four important opinions defining the outer limits of Code of Civil Procedure section 425.16, the anti-SLAPP statute.

The anti-SLAPP statute protects any "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue." (Code Civ. Proc., § 425.16, subd. (e).) The statute categorizes four such types of acts. The first category is "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." (Code Civ. Proc., § 425.16, subd. (e)(1).) The second category is "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." (Code Civ. Proc., § 425.16, subd. (e)(2).)

In Kibler v. Northern Inyo County Local Hospital District (July 20, 2006) ____ Cal.4th ____ (S131641), the Supreme Court held the anti-SLAPP statute applies in a lawsuit brought by a hospital staff physician arising out of a disciplinary recommendation by the hospital's peer review committee. The court reasoned that the doctors who participate in such peer review proceedings should be afforded the procedural protection offered by the anti-SLAPP statute because peer review proceedings constitute "any other official proceeding authorized by law." The decision in this case will provide additional protection to the doctors who volunteer their time to sit on hospital peer review committees in order to insure the quality of hospital care. Horvitz & Levy, LLP represented the hospital district in the Supreme Court.

In Flatley v. Mauro (July 27, 2006) ___ Cal.4th ___ (S128429), the Supreme Court held that where a defendant's assertedly protected speech or petitioning activity is illegal as a matter of law and unprotected by the constitutional guarantee of free speech and petition, the anti-SLAPP statute cannot be used to strike plaintiff's complaint. In Flatley, defendant sought to extort money from plaintiff in exchange for not filing a lawsuit alleging lurid details about plaintiff. The court reasoned that since extortion is not protected speech, a defendant cannot rely on the anti-SLAPP statute to strike a complaint seeking damages for the attempted extortion.

In Soukup v. Law Offices of Herbert Hafif (July 27, 2006) ___ Cal.4th ___ (S126715, S126864), the Supreme Court interpreted the newly passed addition to the anti-SLAPP statute, contained in section 425.18, which is designed to bar the use of the anti-SLAPP motion in so-called "SLAPP-back" cases, involving the use of an anti-SLAPP motion to strike a malicious prosecution claim. The court held that only those cases where the lawsuit underlying the malicious prosecution was illegal as a matter of law would preclude the filing of an anti-SLAPP motion to dismiss the malicious prosecution action. In all other malicious prosecution actions, the anti-SLAPP statute can be used.

Finally, in S.B. Beach Properties v. Berti (July 31, 2006) ___ Cal.4th _____ (S127513), the Supreme Court held that where plaintiffs voluntarily dismiss their complaint without prejudice before defendants attempt to file an anti-SLAPP motion, defendants may not recover their attorney fees and costs pursuant to section 425.16, subdivision (c). However, the court appears to endorse prior court of appeal authority holding that defendants are entitled to attorney fees under section 425.16, subdivision (c) where a plaintiff dismisses an action after the defendant files an anti-SLAPP motion.

With this new set of cases, the Supreme Court has further identified the contours of the anti-SLAPP statute. If you have any questions about these cases or any anti-SLAPP question, feel free to contact Jeremy B. Rosen at jrosen@horvitzlevy.com or (818) 995-0800.

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