This post is the latest in a series of posts about California’s anti-SLAPP law. California’s anti-SLAPP law (Code of Civil Procedure, section 425.16) protects defendants from lawsuits brought to chill their First Amendment rights. When the anti-SLAPP law applies, a defendant can obtain a quick dismissal at the early stages of the lawsuit and get an award of the defendant’s attorney’s fees. For example, if a person is sued for defamation for writing a negative review on Yelp!, the defendant may bring an anti-SLAPP motion under the theory that the reviewer has a free speech right in connection with consumer protection issues. Likewise, a defendant sued for malicious prosecution can bring an anti-SLAPP motion under the theory that the defendant’ First Amendment right of petition (access to the courts) has been infringed. However, not every lawsuit qualifies for anti-SLAPP protection.
On March 4, 2015, the Fourth Appellate District, Division One, issued its opinion in Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes (March 4, 2015 D066483). The opinion, authored by Associate Justice Alex. C. McDonald concluded that Shea Homes, a home builder, could not invoke California’s anti-SLAPP law just because the plaintiff homeowners association’s pleadings merely referenced a position taken by the parties in litigation. Because the conduct and omissions giving rise to the association’s claims pre-dated the litigation by several years, a passing reference in the pleadings to positions taken in the litigation were held to be insufficient to invoke anti-SLAPP protection. As written by the court:
“…the genesis of the underlying obligation sued on by plaintiffs was the fiduciary obligations that arose and were allegedly breached before any litigation activities were undertaken (see Moore v Shaw (2004) 116 Cal.App.4th 182, 197 [anti- SLAPP statute inapplicable where alleged misconduct occurred years before litigation initiated]),”
The Trilogy case presents a good example of how appellate courts are defining the limits of anti-SLAPP protection and preventing its misapplication to garden variety lawsuits that do not implicate First Amendment rights.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.