Q&A. Please review Anti-SLAPP… What is it? How to use/do it?

A. The acronym SLAPP stands for “Strategic Lawsuit Against Public Participation.”  In 1993, the California Legislature enacted Code of Civil Procedure §425.16 after finding a “disturbing increase” in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition.  The statute’s express aim is to provide a quick and inexpensive method of “nipping SLAPP litigation in the bud” by disposing of unmeritorious cases at the outset of a case where the litigant has misused the legal system to challenge the valid exercise of another party’s effort to petition a court for redress.  In the association context anti-slapp motions are not uncommon.  An example of a classic Association-related SLAPP suit (i.e. subject to being dismissed by an Anti-SLAPP motion) arises in the following scenario: An Association sues an Owner over a CC&R violation.  In response, the Owner files their own lawsuit claiming damages for the “emotional distress” caused by the Association’s lawsuit.  Since the Association has a constitutional right to file a lawsuit (right of petition), the Owner’s lawsuit is subject to an Anti-Slapp motion to strike.  Another example can arise in an election context.  Here an Owner may publicly criticize a candidate’s qualifications or motives (free speech).  If the candidate sues the commenting Owner for libel or slander, the Defendant-Owner can probably file an Anti-Slapp motion.  A defendant who believes they have been improperly sued for merely exercising their constitutional rights may file an Anti-SLAPP motion.  If the Defendant can demonstrate that the allegations arise from protected activity, the Plaintiff must then submit admissible evidence to the Court that demonstrates a likelihood of prevailing at trial.  If the motion is granted, the causes of action (possibly entire lawsuit) must be dismissed, and the court must award the Defendant attorney’s fees and costs.  This is a complicated and nusanced area of the law, and should only be litigated by a lawyer experienced in this area of law.  Joyce J. Kapsal, Esq. & William S. Budd, Esq.