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SLAPP Appeals

Herb Fox, a Certified Appellate Law Specialist, handles appeals arising from anti-SLAPP motions in the state and Federal appellate courts throughout southern California. 

SLAPP stands for Strategic Lawsuit Against Public Participation. In 1992, the California Legislature authorized defendants in certain kinds of cases to file a special motion to strike the plaintiff’s complaint where the allegations concern or affect the defendant’s First Amendment rights. 

Over the years, the courts have expanded the use of “anti-SLAPP” motions in a variety of civil cases; such motions are now commonly brought in cases alleging defamation (libel or slander); malicious prosecution; abuse of process; interference with business interests; nuisance; infliction of emotional distress; and virtually any case that concerns statements made about or in a public forum.  Further, the anti-SLAPP statute can be used in certain Federal Court cases as well.

The main characteristics of anti-SLAPP motions that make them effective for defendants (and a danger to plaintiffs) are:

  • They must be filed very early in the lawsuit – within 60 days of service of the complaint;
  • All discovery is stayed while the motion is pending;
  • If successful, anti-SLAPP motions can dispose of an entire lawsuit or major components of a lawsuit;
  • A defendant who wins an anti-SLAPP motion is entitled to an award of the attorney’s fees incurred in bringing the motion; and,

The trial court order granting or denying the motion is immediately appealable.  This means, among other things, that even if a defendant loses an anti-SLAPP motion, the defendant can delay the case from going forward for as long as two years or more while the case makes its way through the state appellate courts or the Ninth Circuit Court of Appeals!

Perhaps most important for appeal purposes, appellate court review of an order granting or denying an anti-SLAPP motion is de novo, which means that the Court of Appeal will independently determine the merits of the motion, without deferring to the conclusions reached by the trial court.

For all of these reasons, SLAPP appeals are high stake matters that require a careful assessment of the merits and the risks attendant to the appellate proceeding, and exploration of the value of settlement on appeal.  These appeals also require the careful preparation of well researched and well written briefs that do not simply rely on the issues and arguments as presented to the trial court.