Orange County Branch Newsletter
March / April 2017
Law and CE News
The State Bar SLAPPs Back
In Barry v. The State Bar of California, attorney Barry sued the State Bar, in state Court, after it imposed disciplinary actions against her. The Bar moved to strike the lawsuit under Code of Civil Procedure section 425.16—a statute designed to curb lawsuits arising from free speech and petitioning activities that are termed “strategic lawsuits against public participation” or “SLAPP” suits. The trial court found that it lacked subject matter jurisdiction over the case and granted the Bar’s anti-SLAPP motion and awarded it attorney fees. The Court of Appeal reversed, agreeing with Barry that the trial court lacked jurisdiction over her claims and so it could not make the fee award. The Supreme Court reversed, holding that a court lacking subject matter jurisdiction still has the power to resolve an anti-SLAPP motion on jurisdictional grounds.
The Supreme Court dismantled the assumption underlying the Court of Appeal’s decision—to grant a special motion to strike requires a determination on the substantive merits of the case. To strike a SLAPP, a court must find that the plaintiff does not have a likelihood of prevailing. This does not necessarily require a decision on the merits of a plaintiff’s claim. Where, as in Barry, a plaintiff’s claim fails for lack of jurisdiction, the SLAPP motion can be granted because the purpose of the anti-SLAPP statute is “to shield defendants from the undue burden of defending against claims filed not for the purpose of securing judicial redress, but to intimidate or harass on the basis of the defendant’s constitutionally protected activity. A claim may fall into this category if it lacks substantive merit, but it also may fall into this category if it is filed in a tribunal that lacks the power to hear it.” The result reinforces a tool for attorneys at large who face lawsuits addressing their conduct of litigation or other First Amendment-protected activities.
Barry is the second time recently that the Supreme Court affirmed the anti-SLAPP statute’s ability to weed out unmeritorious attacks on protected activities. Last August in Baral v. Schnitt, the Court held that an anti-SLAPP challenge could be sustained as to claims based on protected activity even where the grant of the motion will not entirely dispose of a cause of action. That is, plaintiffs cannot survive an anti-SLAPP motion simply by pleading mixed causes of action supported by other allegations (such as those relating to unprotected activities, or those in support of claims on which the plaintiff is likely to prevail). Instead, the Supreme Court held that the defendant can use the procedure in the anti-SLAPP statute to eliminate allegations of protected activity supporting meritless claims from the complaint, and prevent discovery thereon.
These two decisions, Barry and Baral, confirm the anti-SLAPP statute is a powerful tool for defendants to minimize exposure to unmeritorious claims.
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Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.