In 1988, University of Denver law professor George Pring collaborated with sociology professor Penelope Canan to publish a law review article in which they coined the acronym SLAPP, for Strategic Lawsuit Against Public Participation. They gave this name to the kind of meritless lawsuit that sometimes is brought by a large and powerful organization against its critics, primarily for the purpose of making them shut up and go away. Pretty soon, legislatures all over the country began enacting anti-SLAPP laws.
California's is found at CCP 425.16. It creates a special Motion to strike any cause of action arising from the exercise of a defendant's (or cross-defendant's) constitutional right of petition or free speech in connection with a public issue. The statute defines public issue as any matter under consideration by an official body or in any official proceeding, or any statement made in a public forum, or anywhere at all in connection with a matter of public interest. A few well-placed commas might have saved some judicial time, but a series of cases have led to the understanding that if the statement is in or about an official proceeding, it need not be shown to involve a public issue; otherwise it must. The statute also says that the motion must be granted unless plaintiff can show a probability of prevailing. Cases have interpreted this to mean simply the ability to make out a prima facie case. The statute authorizes the award of atty fees to a party successfully making a motion, or, if the motion is found to have been frivolous, to a party successfully opposing one. It has been held that the fees awarded under the statute should only be those incurred in connection with the motion itself, and any appeal from the decision on such a motion. Incidentally, the statute also permits an appeal directly from a decision either way on a SLAPP motion.
Cases have held that deciding a SLAPP motion should involve a two-step analysis. First, the moving party has the burden of showing that the action it wants to strike arises from 's exercise of one of the specified constitutional rights. If not, the statute does not apply, and that's the end of it. If the SLAPP statute does apply, the second step shifts the burden to plaintiff to show the ability to make out a prima facie case.
Now let's stop and think about that for a moment. If the action is a SLAPP, plaintiff has the burden of showing that it can make out a case, or the complaint will be stricken and the action dismissed. Compare this to a motion for summary judgment, in which a defendant who wants a case dismissed has the burden of showing that plaintiff cannot make out a case. That is why a SLAPP motion has been called a motion for summary judgment in reverse.
Now you can understand why we are seeing so many SLAPP motions. If the action happens to be one covered by the statute, there are two reasons why a defendant is better off filing a SLAPP motion than a motion for summary judgment. First, plaintiff will have the burden, instead of the other way around. And second, attorney fees may be awarded for winning a SLAPP motion, while they ordinarily are not awarded in connection with a motion for summary judgment.
Since the SLAPP statute was enacted in 1992, courts are still deciding the kinds of cases to which it applies. But as time goes on and this becomes clearer, most of the decisions will be concerned with the elements of plaintiff's case, just as in most summary judgment cases today.
Cases on this citation list deal primarily with procedural issues, such as whether the SLAPP statute applies, discovery matters, and the award of attorney fees. Cases in which the primary issue was plaintiff's ability to make out a prima facie case can be found by searching for key words relating to the case or tort involved.