5th May 2022
The anti-slapp defense has become one of the most popular defenses in American civil litigation. Anti-slapp refers to “strategic losses against public participation”. CCP § 425.16
The treatise California Insurance Law Dictionary and Desk Reference contains a hundred page chapter [§ A74 ANTI-SLAPP] discussing and analyzing over 200 appellate decisions regarding when the defense applies and when the defense does not apply. The anti-slapp defense does have limited application to insurance law litigation and more particularly to CGL policies, coverage B. Coverage B covered issues would relate to litigation involving libel and slander, malicious prosecution and employment litigation.
Form of the anti-slapp motion; form of the response thereto
The anti-slapp motion and the response thereto includes the following parts and considerations.
- The motion is made by a defendant (cross-defendant). See § A74:1 In general. The motion relates to various types of “protected speech”. See § A74:2 STEP ONE: “protected activity” meaning of – “Act in furtherance of a person’s right of petition or free speech”.
- Defendant’s anti-slapp motion must be supported by a declaration containing facts and/or evidence that would be admissible at trial. See § A74:6.1 “Cause of action” based on both “protected and unprotected” activity,
- Defendant must specify which cause of action, if more than one is alleged in plaintiff’s complaint, is in violation of CCP § 425.16. See § A74:5 Burden of proof – STEP ONE. Plaintiff’s suit may contain both “protected” and “unprotected” activity. Only the protected activity may be stricken from the plaintiff’s complaint. See § A74:6.1 “Cause of action” based upon both “protected” and “unprotected” activity.
- The motion to strike must be filed within sixty (60) days of the service of the complaint. See § A74:1.2.
- There are multiple acts and types of speech that are protected. See § A74:2 – § A74:2.14.
- Pre-litigation conduct or writings are protected. See § A74:6.2 Pre-litigation and litigation conduct as protected acts and conduct.
- Defendant’s attorney is protected by the anti-slapp statute. See § A74:7.4.1; § A74:11.
- A defendant who brings a successful motion to strike under CCP § 425.16 is entitled to mandatory attorney fees. See § A74:4.2.
Plaintiff in its response has the right to establish by admissible evidence a reasonable probability of success on its claim at trial. See § A74:5.1 STEP TWO – Plaintiff has established by admissible evidence a reasonable probability of success on the claims at trial.
The trial court considers the pleadings and supporting and opposing affidavits (declarations) stating the facts upon which the liability or defense is based. [CCP § 425.16(b)(2)] A plaintiff seeking to demonstrate the merit of the claim may not rest solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. See § A74:5.1 STEP TWO – Plaintiff has established by admissible evidence a reasonable probability of success on the claims at trial; Sugarman v. Bennett (2021) 73 Cal. App. 5th 165, 288 Cal. Rptr. 3d 174, 180.
References in bold are to Mr. Cornblum’s text CALIFORNIA INSURANCE LAW DICTIONARY AND DESK REFERENCE, 2022 Edition, published by ThomsonReuters (1-800-344-5008 to order 3-Volume text). This text is also available to search on Westlaw.
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